The Duty of Confidentiality to your Client

Question 1

What is the general rule?

Answer 1

Don’t reveal anything related to the representation of a client without her consent.

Question 2

What is the rationale behind the general rule?

Answer 2

Maximize trust and therefore candor, allowing the adversarial system to work.

Question 3

What is the scope of the duty of confidentiality?

Answer 3

It applies regardless of whether the client requested the information be kept confidential or whether its revelation might harm or embarrass the client

Question 4

When does the duty of confidentiality attach?

Answer 4

Rule: The duty of confidentiality can attach before a lawyer-client relationship is formed or even if none is ever formed.

Question 5

Can you disclaim the duty of confidentiality prior to the formation of an attorney-client relationship?

Answer 5

Be skeptical of disclaimers on the bar regarding confidentiality. If there is one it must be abundantly clear and unambiguous, such as “I understand and agree that Law Firm will have no duty to keep confidential the information I am now transmitting to Law Firm”.

Question 6

How long does the duty of confidentiality last?

Answer 6

It can last after the representation ends, and even after death.

Question 7

Which is broader in scope, the attorney-client privilege of evidence or the duty of confidentiality?

Answer 7

Duty of Confidentiality

Question 8

What are the three umbrella exceptions to the duty of confidentiality?

Answer 8

1. Consent
2. Defending yourself
3. If compelled by final court order, law, or other ethical duties

Question 9

When can you divulge confidential information in terms of defending yourself?

Answer 9

In malpractice suits, disciplinary actions against you, and if a client refuses to pay you, and forces you to sue for fees.

The exception is that the revealing information is necessary to establish your claim or defense.

Question 10

When does your duty to uphold the law allow you to reveal confidential information? (ABA)

Answer 10

If you reasonably believe it is necessary to reveal confidential information to prevent reasonably certain death or substantial bodily harm. OR

To prevent fraud or financial injury if the client used or is using your services to commit the crime and disclosure would prevent or mitigate substantial financial loss.

Question 11

When does your duty to uphold the law allow you to reveal confidential information? (CA)

Answer 11

In order to reveal confidential information to prevent reasonably certain death or substantial bodily injury you must first (i) make a good faith effort to persuade the client not to commit the act, and (ii) inform the client of your decision to reveal his confidences.

No financial exceptions in CA.