Oregon State Bar Bulletin — FEBRUARY/MARCH 2004

Bar Counsel
THE SECRETS WE KEEP
A review of the duty of confidentiality
By Sylvia E. Stevens

Loyalty to the client is a lawyer’s first and foremost duty.1 An essential component of the duty of loyalty is the obligation to preserve the client’s confidential information.

While the ethical duty of confidentiality has its roots in the evidentiary privilege that protects attorney-client communications, it is broader in scope. The ethical duty protects more information and applies even outside of judicial proceedings. DR 4-101, taken from the old ABA Model Code of Professional Responsibility, refers to the information protected by this ethical duty as 'confidences' and 'secrets' of a client. A 'confidence' is defined as information protected by the attorney-client privilege under applicable law. The definition of a 'secret,' however encompasses 'other information' gained in a current or former representation that the client has asked be kept secret or which would be embarrassing or prejudicial to the client if disclosed. Thus, information not generally protected by the attorney-client privilege, such as the identity or whereabouts of a client, may be protected by the ethical duty of confidentiality. Similarly, information the lawyer learns from third parties or other non-privileged sources may nevertheless be a 'secret' of a client that the lawyer must preserve.2

When the ABA Model Rules of Professional Conduct were adopted in 1983, the 'confidences and secrets' terminology was abandoned in favor of a broader approach that protects all 'information relating to the representation.' The duty of confidentiality under MR 1.6 is not limited by whether it was received before, during or after a representation and without regard to whether the client has asked that the information be kept confidential or whether the lawyer believes disclosure would embarrass or adversely affect the client.3

The duty to protect client confidences and secrets goes beyond the obvious prohibition against revealing the information without the client’s consent. DR 4-101(B) also prohibits a lawyer from using confidential client information to the disadvantage of the client or to the advantage of the lawyer or another person. In other words, using confidential client information to the detriment of the client or for the benefit of another person is as much a breach of duty as is revealing the information.

The duty of confidentiality generally arises when the attorney-client relationship is established.4 However, the attorney-client privilege applies to communications between a lawyer and a prospective client. OEC Rule 503(1)(a) defines 'client' to include a person who consults a lawyer 'with a view to obtaining professional legal services from the lawyer.' ABA Model Rule 1.18 has incorporated this principle by identifying such persons as 'prospective clients' and cloaking them with much the same protection of confidential information as is afforded full-fledged clients under the Model Rules5: 'Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation [except as otherwise permitted with respect to information of a former client].'

The duty to protect client confidences and secrets does not end when the lawyer-client relationship ends. It is perpetual and survives the client’s death or disability. See OSB Legal Ethics Op. No. 1991-123; §6.5, The Ethical Oregon Lawyer (OSB 2003); ABA Model Rule 1.6, Comment [18]; OEC Rule 503(3). The continuing duty is reflected in part by the prohibition against using the confidences and secrets of a former client for the benefit of a new client in a new matter. DR 5-105(C).

DR 4-101(D) expressly requires lawyers to exercise reasonable care to ensure that confidential client information is not improperly revealed by employees, associates and others whose services are utilized by the lawyer in the rendition of legal services. There are no Oregon cases interpreting this obligation, but it is logical to assume it applies to people who provide contracted support services in the lawyer’s office (information technology, accounting, trash collection, etc.) as well as to the lawyer’s own staff. See OSB Legal Ethics Op. No. 1995-141. The ABA Model Rules approach to this issue, as adopted in the majority of states, is not limited to protecting confidential client information. Model Rules 5.1 requires partners and supervisory lawyers to make reasonable efforts to ensure that the firm or office has measures in effect to reasonably assure that the conduct of all lawyers in the firm conforms to the disciplinary rules. Model Rule 5.3 imposes a similar requirement to reasonably assure that the conduct of non-lawyer assistants is compatible with the lawyer’s professional obligations.6

There is some question of whether and to what extent information in the public record or otherwise publicly known is entitled to protection under DR 4-101. In In re Perkins, 2 DB Rptr 1 (1988), a lawyer’s disclosure of a former client’s criminal conviction to a current client was held not to violate DR 4-101 because the information was a matter of public record. On the other hand, in In re A., 276 Or 225, 554 P2d 479 (1976), the Supreme Court held that information about a person’s death, while available in the public record, was nevertheless a secret of the client when the disclosure of the information would prejudice the client.

There may be more latitude when the information concerns a former client. For instance, Model Rule 1.9(c) permits a lawyer to use information learned from a former client if the information is 'generally known,' although there is no clear definition of what that means. Several authorities suggest that a lawyer’s duty of loyalty doesn’t disappear merely because the information in question has become public or has been disclosed in other proceedings. See, e.g., §6.4, The Ethical Oregon Lawyer (OSB 2003); §51:222, ABA/BNA Manual on lawyer’s Professional Conduct. A cautious lawyer will avoid disclosing information about a client when it is widely publicly known to the extent that the client no longer considers it a secret shared with the lawyer.

The importance of the duty of confidentiality is reflected in the fact that exceptions to the duty are few and narrow. Moreover, in Oregon, the exceptions are permissive rather than mandatory, so that a lawyer is never required to reveal a client’s confidences and secrets.

The first exception in DR 4-101(C) permits a lawyer to reveal the client’s confidences and secrets when the client has consented after full disclosure. Full disclosure is an explanation sufficient to apprise the client of the risks attendant to the revelation of the information; except when the requested disclosure involves a conflict of interest, the 'full disclosure' does not include a recommendation to seek independent counsel. DR 10-101(B).

Full disclosure may seem unnecessary when the client has requested the disclosure, such as when the client is changing lawyers and requests transfer of the file. However, even in such seemingly innocuous situations, there may be information in the file that, in the hands of successor counsel, may work to the client’s disadvantage or which the client does not wish to share with successor counsel. Similarly, a client might ask her lawyer to explain some aspect of a matter to a third person; in that situation, the client is entitled to an explanation about the risk of waiving attorney-client privilege.

Confidences and secrets may be revealed when permitted by the Disciplinary Rules or when the revelation is required by law or court order. DR 4-101(C)(2). The primary effect of this provision is to insulate lawyers from discipline if they disclose confidential information over the client’s objection but in response to a court order or to comply with a law requiring disclosure. The only permission in the Disciplinary Rules for revealing confidential client information is in DR 4-101(C) itself. Court orders requiring the disclosure of confidential client information may arise in a variety of situations and typically place the lawyer between the rock and the hard place of having to choose between revealing potentially damaging information about the client or being held in contempt. This is relatively rare, however, as courts are generally sensitive to the ethical responsibilities of lawyers.

The most frequently discussed example of the conflict between the ethical duty of confidentiality and a law that requires disclosure is the Form 8300 dispute. The Internal Revenue Code requires that any person who receives a cash payment in excess of $10,000 in connection with a trade or business file a report including the client’s name. Although court decisions beginning with US v. Goldberger & Dubin, P.C, 935 F2d 501 (2nd Cir. 1991) have held that the law takes precedence, lawyers may elect to put themselves at risk to protect their client’s secrets. See US v. Blackman, 72 F3d 1418 (9th Cir. 1995).

DR 4-101(C)(2) also allows a lawyer to disclose 'secrets' that the lawyer 'reasonably believes need to be revealed to effectively represent the client.' This language was added to DR 4-101(C)(2) in 1986, patterned after language in the then-relatively new Model Rule 1.6 which allows disclosures that are 'impliedly authorized to carry out the representation.' The exact contours of what disclosures are impliedly authorized are not clear. Comment [5] to MR 1.6 suggests the following: disclosures to admit facts that cannot be properly disputed, disclosures to facilitate a satisfactory conclusion to a matter, and disclosure to members of the lawyer’s firm in the course of the firm’s practice unless the client has instructed otherwise.

In Oregon, a lawyer may disclose the intent of the client to commit a crime and the information necessary to prevent the crime. DR 4-101(C)(3) does not limit the types of crimes to which the rule applies. The 1983 ABA Model Rules limited the lawyer’s disclosures to crimes that were likely to result in imminent death or substantial bodily harm, but that approach was not widely adopted. Depending on the jurisdiction, disclosure may be required, rather than merely permitted, to prevent the commission of a crime; the crime prevention exception may be limited to crimes involving imminent death or serious injury; the exception may include disclosure of the client’s intent to commit fraud; and, in some jurisdictions, disclosure is permitted to rectify the consequences of the client’s crime or fraud. In 2002, the ABA amended Model Rule 1.6 to allow disclosure to 'prevent, mitigate or rectify' a crime or fraud that is reasonably certain to result in serious financial injury, if the client has used the lawyer’s services to further the conduct. It remains to be seen whether many states will adopt the new Model Rule formulation.

MR 1.6 was amended in 2002 to allow disclosure of confidential client information to prevent reasonably certain death or serious bodily harm regardless of whether the client’s intended conduct is criminal. This exception is included in Rule 1.6 of the proposed Oregon Rules of Professional Conduct. If adopted, it would permit lawyers to disclose a client’s intention to commit suicide which is not currently allowed, as suicide is not a crime in Oregon.

DR 4-101(C)(4) contains three exceptions that are collectively referred to as the 'self-defense' exceptions. The first one allows disclosures to establish a claim or defense of a lawyer in a dispute between the lawyer and the client. For example, a lawyer may disclose confidential information to make a claim for outstanding fees or to defend against a malpractice claim. The second self-defense exception allows the lawyer to use confidential client information to defend against a criminal charge or civil claim against the lawyer based on conduct involving the client. An example would be a lawyer who is charged with criminal or civil conspiracy or securities fraud involving the client. The third self-defense exception allows disclosure of confidential information to respond to allegations concerning the representation of a client. This exception allows lawyers to divulge confidential information about a client to defend a disciplinary complaint, even if the allegations are made by someone other than the client. It also applies to ineffective assistance of counsel claims. The self-defense exceptions are narrow and permit the lawyer to disclose only the information necessary to establish the claim or defense. In re Huffman, 328 Or 567, 983 P2d 534 (1999) (lawyer’s disclosure was not necessary to establish the validity of his claim; it was little more than a veiled attempt to intimidate the former clients from challenging the judgments he had already obtained).

The final exception in DR 4-104(C) allows lawyers to disclose certain information about their clients in contemplation of the sale of a law practice under DR 2-111. The purchasing lawyer assumes the same obligations of confidentiality as to the information revealed whether or not the sale closes or the clients consent to representation by the purchasing lawyer.

The importance of the duty of confidentiality cannot be overstated. Unless clients are confident that the information will be maintained in confidence, they are not likely to share facts that might be incriminating, embarrassing or otherwise detrimental. A lawyer who does not have all the relevant facts will not be able to represent the client effectively. Trust and confidence between lawyer and client obviously serves the client’s interests; it also serves the public interest by furthering confidence in the legal system.

Endnotes

1. Freedman, M., Understanding Lawyers’ Ethics, p. 65, Matthew Bender & Co. (New York 1990), citing Patterson, 'Legal Ethics and the Lawyer’s Duty of Loyalty,' 29 Emory LJ 909, 918, 947 (1980).

2. In addition to the DRs, lawyers are bound by ORS 9.460(3), which requires that lawyers 'maintain the confidences and secrets' of their clients 'consistent with the rule of professional conduct established pursuant to ORS 9.490.' The latter statute authorizes the OSB Board of Governors to formulate rules of professional conduct for approval by the House of Delegates and adoption by the Oregon Supreme Court.

3. Rule 1.6 in the proposed Oregon Rules of Professional Conduct requires protection of 'information relating to the representation of a client,' but the definition of that phrase in Rule 1.0(g) retains the characterization of confidences and secrets from DR 4-101. The proposed ORPCs are pending before the Oregon Supreme Court; see the OSB website for additional information about the proposed rules.

4. For a discussion on the establishment of the attorney-client relationship, see In re Weidner, 310 Or 757 (1990) and the discussion at §5.3, The Ethical Oregon Lawyer (OSB 2003).

5. Model Rule 1.18 was adopted by the ABA in February 2002 and has been adopted in some states. It is included in the proposed Oregon Rules of Professional Conduct.

6. The proposed Oregon Rules of Professional Conduct contain Rules 5.1 and 5.3.

© 2004 Sylvia E. Stevens

ABOUT THE AUTHOR
Sylvia E. Stevens is assistant general counsel of the Oregon State Bar. Reach her at (503) 620-0222, ext. 359, or toll-free in Oregon at (800) 452-8260, ext. 359, or by e-mail at sstevens@ osbar.org.


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