| Oregon State Bar Bulletin — JUNE 2009 |
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The Duty of Confidentiality
By Helen Hierschbiel
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If there is one duty that virtually all lawyers have ingrained in their psyches, it is the duty to protect their clients’ confidential information. Notwithstanding this basic instinct, myths about the duty abound. In a highly unscientific method called “asking around,” the OSB general counsel’s office compiled the following list of top 10 myths about the duty of confidentiality, and the truth behind these myths.
The Basics
“Your secret’s safe with me, Frank.”
— Hawkeye, M*A*S*H
Myth #1: Confidential information consists only of information subject to the attorney-client privilege.
Oregon RPC 1.6(a) prohibits lawyers from revealing “information relating to the representation of a client,” which is defined under RPC 1.0(f) as including both information protected by the attorney-client privilege and other information gained during the course of the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client. This second category of confidential information could be from a source other than the client. This relates to another misconception — that lawyers may freely reveal information about their client that is in the public record. Just because a client’s criminal conviction, for example, is a matter of public record does not mean that the lawyer should be the one to inform others of that conviction.
Myth #2: You owe no duty of confidentiality to prospective clients.
Oregon RPC 1.18 sets forth a lawyer’s duties to prospective clients. When a person discusses with a lawyer the possibility of retaining the lawyer, the lawyer is prohibited from using or revealing any information gained during the consultation except when the information has become generally known or as the rules would otherwise allow. The fact that the prospective client is an adverse party to a current client, and the information provided would help the current client, does not give lawyers license to share the information.
Myth #3: You may reveal your client’s confidences after the client has died.
Contrary to popular belief, the lawyer-client privilege survives the death of the client. The U.S. Supreme Court explained the purpose of this rule in Swidler & Berlin v. United States, 524 U.S. 399, 407 (1998), saying that posthumous application of the privilege encourages full and frank communication with counsel.
Myth #4: As long as you call it a “hypothetical” and don’t mention your client’s name, you may openly discuss your client’s case with others.
The collegiality and seeming anonymity of e-mail distribution lists and other online forums can lull lawyers into a dangerously false sense of security when it comes to protecting client confidences. It is important to remember that your colleagues may also be your opponents. Thus, lawyers should be cautious when seeking guidance from others, including the bar. While lawyers are allowed to reveal confidential information to the bar to the extent necessary to seek ethics guidance, lawyers should be mindful of the fact that the bar is subject to the public records laws.
Rooting Out Wrongdoers
“I am an urban informer. I am not a snitch.”
—Huggy Bear, Starsky and Hutch
Myth #5: You must always reveal client confidences if they involve information about child abuse.
Lawyers are mandatory reporters of child abuse. Thus, if they have reasonable cause to believe that abuse has occurred, and they have had some contact with either the perpetrator or the victim of the abuse, they must report the matter to the authorities, unless one of the exceptions applies. If the information about the abuse is subject to the lawyer-client privilege, or if it was gained during the course of representing a client and would be detrimental to the client if disclosed, then the lawyer is exempt from reporting. Therefore, lawyers generally are not required and not permitted to report child abuse if it would mean revealing confidential client information.
Myth #6: If you learn that your client committed a crime or perpetrated a fraud during your representation of the client, you have a duty to reveal that information.
Lawyers are prohibited from counseling or assisting their clients to engage in illegal or fraudulent conduct. Oregon RPC 1.2(c). Further, RPC 3.3(b) requires lawyers to take reasonable remedial measures when they know that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to an adjudicative proceeding. However, neither rule requires lawyers to turn in their clients when they have engaged in illegal or fraudulent conduct. In fact, RPC 3.3(c) specifically says that the duty to take reasonable remedial measures does not require the disclosure of information protected by RPC 1.6.
Myth #7: You must reveal information necessary to prevent your client from committing a crime or to prevent reasonably certain death or substantial bodily harm.
While lawyers must protect information about clients’ past crimes, they may reveal information about future client crimes. Oregon RPC 1.6(b) allows — but does not require — lawyers to reveal information relating to the representation of a client to the extent that lawyers reasonably believe is necessary to prevent a client from committing a crime or to prevent reasonably certain death or substantial bodily harm.
Myth #8: If you know that another lawyer has breached the rules of professional conduct, you have a duty to reveal that information, even if doing so would require revealing client confidences.
If a lawyer knows that another lawyer violated the rules of professional conduct and that such violation raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer, then that lawyer must report the offending lawyer to the Oregon State Bar. Oregon RPC 8.3(a). However, the rule does not require lawyers to reveal information otherwise protected by RPC 1.6, that is, information relating to the representation of a client. See RPC 8.3(c). Thus, lawyers do not have a duty to report other lawyers’ wrongdoing when doing so would require revealing client confidences.
An Eye For An Eye
“Hello, my name is Inigo Montoya. You killed my father. Prepare to die.”
—Inigo Montoya, The Princess Bride
Myth #9: When a client files a bar complaint against you, you have license to reveal everything you know about the client, and then some.
Lawyers may reveal their clients’ confidential information to the extent reasonably necessaryin order to respond to allegations of ethical misconduct. See Oregon RPC 1.6(b)(4). This does not mean that all bets are off once a client complains about the lawyer. Instead, when required to respond to a complaint of ethical misconduct, lawyers must determine what information is necessary to reveal in order to respond to the allegations. Again, remember that the bar is subject to the public records laws; therefore, most information submitted to the bar becomes a public record, subject to possible further disclosure to the general public. Revealing confidential information while the client’s litigation is still pending can be particularly prejudicial to the client and should be avoided if possible.
Myth #10: When withdrawing from representation of a client, you should reveal all negative information about the client, not just to make yourself feel better, but to protect the court and other lawyers from your former client.
Oregon RPC 1.16 permits lawyers to withdraw from representation for a multitude of reasons, including reasons having to do with a client’s wrongdoing. It does not, however, allow the lawyer to reveal the details of the client’s missteps or flaws, however tempting that might be. For guidance on what to tell the court when withdrawing, see The Ethical Oregon Lawyer, §4.3 (Oregon CLE 2006).
The Moral of the Story
When you feel inclined to reveal client confidences, consider the advice of Mark Twain: “It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt.”
ABOUT THE AUTHOR
Helen Hierschbiel is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by e-mail at hhierschbiel@osbar.org.
Ethics opinions are published and updated on the bar’s website here.
© 2009 Helen Hierschbiel