Duty of Confidentiality

Question 1

Duty of Confidentiality–In General

Answer 1

A lawyer has a duty to maintain the confidentiality of all information relating to the representation of a client. This duty is broader than the attorney-client privilege, and extends to all information conveyed between the lawyer and client/potential client, regardless of whether the client requested that the information be kept confidential or whether the use of the information will damage the client.

Question 2

Duty of Confidentiality–ABA

Answer 2

Under the ABA, a lawyer may disclose confidential information if:

(a) the client consents;
(b) the lawyer is ordered by law to do so;
(c) it’s needed to defend a malpractice action or in a suit to recover legal fees;
(d) to prevent death or substantial bodily harm;
(e) to prevent the client from committing a crime or fraud (in which the lawyer’s services were used) that will result in substantial financial loss; OR
(f) to secure legal advice about the lawyer’s compliance with ethical rules.

Question 3

Duty of Confidentiality–California

Answer 3

In CA, a lawyer MAY (but is not required) to disclose confidential information of a client when the lawyer reasonably believes disclosure is necessary to prevent a crime that will likely result in death or substantial bodily injury to a person. This is the only circumstance a lawyer may disclose confidential information under the CA rules, and it’s the same whether the client is an individual or an organization.

Additionally, the lawyer must also satisfy two requirements before the disclosure takes place – the lawyer must:

(1) first make a good faith attempt to counsel the client out of committing the crime and/or changing their course of action; AND
(2) inform the client of the lawyer’s ability or decision to disclose the information.

Question 4

Duty of Confidentiality–Client is an Organization

Answer 4

If the client is an organization, and the lawyer becomes aware of a matter that violates a law, legal obligation, or will result in substantial injury to the organization, the lawyer MAY refer the matter to higher authorities within the organization.

After reporting up, the ABA permits disclosure to an outside source if it’s necessary to prevent substantial injury to the organization.

However, CA only permits disclosure to an outside source if it’s necessary to prevent death or substantial bodily harm.

Question 5

Inadvertent Disclosure of Confidential Information–In General

Answer 5

A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of confidential information (including electronically stored information [ESI]) relating to the representation of a client.

Question 6

Inadvertent Disclosure of Confidential Information–ABA

Answer 6

Under the ABA, a lawyer who inadvertently receives a document or ESI must promptly notify the sender. This duty applies only when the lawyer knows/should know that the material was inadvertently sent.

Question 7

Inadvertent Disclosure of Confidential Information–California

Answer 7

In CA, when a lawyer inadvertently/accidentally receives material that obviously appears to be confidential and privileged, the receiving lawyer must do three things:

(1) refrain from examining the materials any more than is essential to ascertain whether the materials are privileged;
(2) immediately notify the sender; AND
(3) proceed to resolve the situation by agreement or through the court.

Question 8

Inadvertent Disclosure of Confidential Information–Returning Documents

Answer 8

A lawyer is NOT required to return the document/materials under the ABA or CA law