Professional confidentiality and exceptions - Professional o...

Learning Outcomes

After reading this article, you will be able to explain the professional obligation of confidentiality under the ABA Model Rules, distinguish it from the attorney-client privilege, identify what information is protected, and recognize when disclosure is permitted or required. You will also be able to apply these principles to MPRE-style questions and avoid common pitfalls on exam day.

MPRE Syllabus

For the MPRE, you are required to understand the ethical duty of confidentiality owed by lawyers to clients. This article covers the following syllabus points:

• The scope and content of the professional obligation of confidentiality under Model Rule 1.6.
• The distinction between the ethical duty of confidentiality and the attorney-client privilege.
• What information is protected by the duty of confidentiality.
• When disclosure of confidential information is permitted or required.
• The duration of the duty of confidentiality.
• The application of confidentiality rules to prospective and former clients.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is protected by the professional obligation of confidentiality?
   1. Only communications covered by the attorney-client privilege
   2. All information relating to the representation, regardless of source
   3. Only information the client asks to keep secret
   4. Only information learned directly from the client
2. Under the Model Rules, a lawyer may reveal confidential information:
   1. Only with a court order
   2. Whenever the lawyer believes it is in the client's best interest
   3. When the client gives informed consent or an exception applies
   4. Never, under any circumstances
3. The duty of confidentiality:
   1. Ends when the representation ends
   2. Applies only to current clients
   3. Survives the client's death
   4. Applies only to information not generally known
4. Which of the following is NOT an exception to the duty of confidentiality under Model Rule 1.6?
   1. To prevent reasonably certain death or substantial bodily harm
   2. To establish a defense in a controversy with the client
   3. To comply with a court order
   4. To disclose embarrassing information about a former client

Introduction

A lawyer's professional obligation of confidentiality is a core ethical duty. This duty requires lawyers to keep secret all information relating to the representation of a client, regardless of the source or whether the information is privileged. The duty is broader than the attorney-client privilege and is essential for building client trust and upholding the integrity of the legal profession.

Key Term: Duty of Confidentiality
The ethical obligation requiring a lawyer not to reveal any information relating to the representation of a client, unless the client gives informed consent, disclosure is impliedly authorized, or an exception applies.

Scope of the Duty

The duty of confidentiality applies to all information relating to the representation, regardless of whether it was obtained from the client, a third party, or through the lawyer's own observations. It covers information learned before, during, or after the representation, and applies even if the information is public or widely known, as long as it relates to the representation.

Key Term: Information Relating to the Representation
Any information acquired in the course of representing a client, from any source, that is connected to the legal matter, regardless of whether it is privileged or public.

Confidentiality vs. Attorney-Client Privilege

The ethical duty of confidentiality is distinct from the attorney-client privilege. The privilege is an evidentiary rule that protects confidential communications between lawyer and client made for the purpose of obtaining legal advice, and applies in legal proceedings. The duty of confidentiality is much broader and applies in all contexts, not just in court.

Key Term: Attorney-Client Privilege
The legal rule that protects confidential communications between a client and lawyer made for the purpose of obtaining legal advice from disclosure in legal proceedings.

What Is Protected?

The duty protects all information relating to the representation, including:

• Communications between lawyer and client.
• Information from third parties.
• Lawyer's observations and impressions.
• Information learned before, during, or after the representation.
• Information about prospective and former clients.

The duty does not protect information that is generally known if it is not related to the representation, but even public information can be protected if it was obtained in the course of representing the client.

When Disclosure Is Permitted or Required

A lawyer must not reveal confidential information unless:

1. The client gives informed consent.
2. Disclosure is impliedly authorized to carry out the representation (such as discussing the matter with firm colleagues, unless the client instructs otherwise).
3. A specific exception under Model Rule 1.6(b) applies.

Permissive Exceptions (Model Rule 1.6(b))

A lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary:

• To prevent reasonably certain death or substantial bodily harm.
• To prevent the client from committing a crime or fraud likely to cause substantial financial injury, if the lawyer's services are being used in furtherance of it.
• To prevent, mitigate, or rectify substantial financial injury resulting from the client's crime or fraud, if the lawyer's services were used.
• To secure legal advice about the lawyer's compliance with the rules.
• To establish a claim or defense in a controversy between the lawyer and client, or to defend against criminal, civil, or disciplinary allegations involving the client.
• To comply with other law or a court order.
• To detect and resolve conflicts of interest arising from changes in firm employment, but only if the information would not compromise the attorney-client privilege or otherwise prejudice the client.

Key Term: Informed Consent
Agreement by the client to a proposed course of conduct after the lawyer has explained the material risks and reasonable alternatives.

Duration of the Duty

The duty of confidentiality continues after the representation ends and survives the client's death. It also applies to information learned from prospective clients, even if no lawyer-client relationship is formed.

Key Term: Prospective Client
A person who consults with a lawyer about the possibility of forming a client-lawyer relationship, even if no relationship results.

Application to Prospective and Former Clients

Lawyers must not use or reveal information from prospective or former clients except as permitted or required by the rules, or if the information has become generally known.

Worked Example 1.1

A client tells her lawyer in confidence that she plans to leave the country to avoid testifying in a criminal trial. The lawyer believes this may result in substantial harm to a witness. May the lawyer disclose this information to authorities?

Answer:
Yes. If the lawyer reasonably believes disclosure is necessary to prevent reasonably certain death or substantial bodily harm, the lawyer may reveal the information under Model Rule 1.6(b)(1).

Worked Example 1.2

A lawyer learns from a prospective client during an initial consultation that the client committed tax fraud years ago. The lawyer declines the case. Is the lawyer permitted to reveal this information to authorities?

Answer:
No. The duty of confidentiality applies to information learned from prospective clients, even if no representation is undertaken, unless an exception applies.

Worked Example 1.3

A client sues her former lawyer for malpractice. The lawyer wishes to disclose confidential information to defend against the claim. Is this allowed?

Answer:
Yes. A lawyer may reveal confidential information to the extent reasonably necessary to defend against a claim by the client.

Exam Warning

The duty of confidentiality is broader than the attorney-client privilege. Do not confuse the two on the exam. Confidentiality covers all information relating to the representation, not just privileged communications.

Revision Tip

On the MPRE, if a question asks whether a lawyer may reveal information, always check for client consent, implied authorization, or a specific exception under Model Rule 1.6(b).

Key Point Checklist

This article has covered the following key knowledge points:

• The professional obligation of confidentiality covers all information relating to the representation, regardless of source.
• The duty is broader than the attorney-client privilege and applies in all contexts.
• Disclosure is only permitted with client informed consent, implied authorization, or a specific exception.
• Exceptions include preventing death or substantial harm, preventing or rectifying financial injury from client crime or fraud, securing legal advice, defending against client claims, complying with law or court order, and detecting conflicts.
• The duty survives the end of representation and the client's death.
• The duty applies to prospective and former clients.

Key Terms and Concepts

• Duty of Confidentiality
• Information Relating to the Representation
• Attorney-Client Privilege
• Informed Consent
• Prospective Client