Client-Lawyer Relationship
[1]This Rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer's representation of the client. See Rule 1.18 for the lawyer's duties with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer's duty not to reveal information relating to the lawyer's prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for the lawyer's duties with respect to the use of such information to the disadvantage of clients and former clients.
[2]A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation. See Rule 1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.
[3]The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope.
[4]Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.
Authorized Disclosure
[5]Except to the extent that the client's instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.
Disclosure Adverse to Client
[6]Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town's water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer's disclosure is necessary to eliminate the threat or reduce the number of victims.
[7]Paragraph (b)(2) is a limited exception to the rule of confidentiality that permits the lawyer to reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or fraud, as defined in Rule 1.0(d), that is reasonably certain to result in substantial injury to the financial or property interests of another and in furtherance of which the client has used or is using the lawyer’s services. Such a serious abuse of the client-lawyer relationship by the client forfeits the protection of this Rule. The client can, of course, prevent such disclosure by refraining from the wrongful conduct. Although paragraph (b)(2) does not require the lawyer to reveal the client’s misconduct, the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. See Rule 1.2(d). See also Rule 1.16 with respect to the lawyer’s obligation or right to withdraw from the representation of the client in such circumstances, and Rule 1.13(c), which permits the lawyer, where the client is an organization, to reveal information relating to the representation in limited circumstances.
[8]Paragraph (b)(3) addresses the situation in which the lawyer does not learn of the client’s crime or fraud until after it has been consummated. Although the client no longer has the option of preventing disclosure by refraining from the wrongful conduct, there will be situations in which the loss suffered by the affected person can be prevented, rectified or mitigated. In such situations, the lawyer may disclose information relating to the representation to the extent necessary to enable the affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses. Paragraph (b)(3) does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense.
[9]A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance of a lawyer's compliance with the Rules of Professional Conduct.
[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.
[11] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.
[12] Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this Rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary to comply with the law.
Detection of Conflicts of Interest
[13] Paragraph (b)(7) recognizes that lawyers in different firms may need to disclose limited information to each other to detect and resolve conflicts of interest, such as when a lawyer is considering an association with another firm, two or more firms are considering a merger, or a lawyer is considering the purchase of a law practice. See Rule 1.17, Comment [7]. Under these circumstances, lawyers and law firms are permitted to disclose limited information, but only once substantive discussions regarding the new relationship have occurred. Any such disclosure should ordinarily include no more than the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated. Even this limited information, however, should be disclosed only to the extent reasonably necessary to detect and resolve conflicts of interest that might arise from the possible new relationship. Moreover, the disclosure of any information is prohibited if it would compromise the attorney-client privilege or otherwise prejudice the client (e.g., the fact that a corporate client is seeking advice on a corporate takeover that has not been publicly announced; that a person has consulted a lawyer about the possibility of divorce before the person's intentions are known to the person's spouse; or that a person has consulted a lawyer about a criminal investigation that has not led to a public charge). Under those circumstances, paragraph (a) prohibits disclosure unless the client or former client gives informed consent. A lawyer’s fiduciary duty to the lawyer’s firm may also govern a lawyer’s conduct when exploring an association with another firm and is beyond the scope of these Rules.
[14] Any information disclosed pursuant to paragraph (b)(7) may be used or further disclosed only to the extent necessary to detect and resolve conflicts of interest. Paragraph (b)(7) does not restrict the use of information acquired by means independent of any disclosure pursuant to paragraph (b)(7). Paragraph (b)(7) also does not affect the disclosure of information within a law firm when the disclosure is otherwise authorized, see Comment [5], such as when a lawyer in a firm discloses information to another lawyer in the same firm to detect and resolve conflicts of interest that could arise in connection with undertaking a new representation.
[15] A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court's order.
[16] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.
[17] Paragraph (b) permits but does not require the disclosure of information relating to a client's representation to accomplish the purposes specified in paragraphs (b)(1) through (b)(6). In exercising the discretion conferred by this Rule, the lawyer may consider such factors as the nature of the lawyer's relationship with the client and with those who might be injured by the client, the lawyer's own involvement in the transaction and factors that may extenuate the conduct in question. A lawyer's decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be required, however, by other Rules. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule. See Rule 3.3(c).
Acting Competently to Preserve Confidentiality
[18] Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. For a lawyer’s duties when sharing information with nonlawyers outside the lawyer’s own firm, see Rule 5.3, Comments [3]-[4].
[19] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule. Whether a lawyer may be required to take additional steps in order to comply with other law, such as state and federal laws that govern data privacy, is beyond the scope of these Rules.
Former Client
[20] The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.
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FAQs
What are the exceptions to the confidentiality rule? ›
Patient confidentiality is not absolute. Legitimate exceptions are disclosures with patient consent, when required by law and where there is a public interest.
What rule involves confidentiality in FL? ›The ethical rule of confidentiality can be found in Rule 4-1.6(a) of the Florida Rules of Professional Conduct. This rule prohibits the voluntary disclosure of information relating to the representation of a client without the client's consent.
Can law firms disclose their clients? ›The solicitors' code of conduct obliges firms to “keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents”.
Does attorney client privilege expire? ›In Swidler & Berlin v. United StatesI the United States Supreme Court did say that the attorney-client privilege continues to live after the client dies, but the Court did not say how long it lives, nor did the Court mention that the privilege lives longer m some places than in others.
What are three limits to confidentiality? ›- Limits Imposed Voluntarily (i.e., Not Legally Required) ...
- Limits That Can Be Imposed by Law (i.e., Possible “Involuntary” Disclosures) ...
- Possible Limitations on Confidentiality Created by Use of Technology in the Setting.
- If the client may be an immediate danger to themself or another.
- If the client is endangering another who cannot protect themself, as in the case of a child, a person with a disability, or elder abuse.
- When required to obtain payment for services.
- As required by state or federal laws.
The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.
What is a good example of confidentiality? ›Some information is always confidential, such as information about someone's health or medical history, especially if given to a healthcare professional. The formal status of other information may be less clear, and gossip would be a good example of this.
What are the 5 confidentiality rules? ›- Ask for consent to share information.
- Consider safeguarding when sharing information.
- Be aware of the information you have and whether it is confidential.
- Keep records whenever you share confidential information.
- Be up to date on the laws and rules surrounding confidentiality.
Breaking confidentiality is done when it is in the best interest of the patient or public, required by law or if the patient gives their consent to the disclosure. Patient consent to disclosure of personal information is not necessary when there is a requirement by law or if it is in the public interest.
When can you breach client confidentiality? ›
If it is not practicable or appropriate to seek consent, and in exceptional cases where a patient has refused consent, disclosing personal information may be justified in the public interest if failure to do so may expose others to a risk of death or serious harm.
When can you disclose confidential information? ›You may only disclose confidential information in the public interest without the patient's consent, or if consent has been withheld, where the benefits to an individual or society of disclosing outweigh the public and patient's interest in keeping the information confidential.
What is the difference between attorney-client privilege and confidentiality? ›Attorney-client privilege is about the communications between the attorney and the client, whereas attorney-client confidentiality is about case information obtained in the course of representing the client. All privileged information is confidential, but not all confidential information is privileged.
Which of the following may not be protected under the attorney-client privilege? ›The privilege extends only to communications that the client intends to be confidential. Communications made in non-private settings, or in the presence of third persons unnecessary to accomplish the purpose for which the attorney was consulted, are not confidential and are not protected by the privilege.
Is there any way around attorney-client privilege? ›A lawyer who has received a client's confidences cannot repeat them to anyone outside the legal team without the client's consent. In that sense, the privilege is the client's, not the lawyer's—the client can decide to forfeit (or waive) the privilege, but the lawyer cannot.
What is the importance of confidentiality? ›Confidentiality is important because:
It prevents misuse of confidential information (illegal or immoral use). It protects reputation. Employment may depend on it (e.g. non-disclosure agreement). It ensures compliance with the law.
Data encryption
Using encryption software is the most effective way of limiting who can view or interact with private information without impacting productivity. Instead of locking down the area where data is stored, making it harder to access, this process protects the information itself.
The principle of confidentiality is about privacy and respecting someone's wishes. It means that professionals shouldn't share personal details about someone with others, unless that person has said they can or it's absolutely necessary.
What is limits of confidentiality? ›The 'limits of confidentiality', it is argued, are set by the wishes of the client or, where these are not known, by reference to those whose right and need to know relate to the care of the client.
What are the four principles of confidentiality? ›Confidentiality's value is not intrinsic but rather instrumental. That is to say, the value of confidentiality is derivative from the other values it advances. We can distin- guish four such values: autonomy, privacy, promise-keeping and utility (or welfare).
What is confidentiality explain with example? ›
Confidentiality refers to personal information shared with an attorney, physician, therapist, or other individuals that generally cannot be divulged to third parties without the express consent of the client. Privacy refers to the freedom from intrusion into one's personal matters, and personal information.
What are some examples of confidential information? ›What are examples of Confidential Information? Examples of confidential information include a person's phone number and address, medical records, and social security. Companies also have confidential information such as financial records, trade secrets, customer information, and marketing strategies.
How do you protect confidential information in the workplace? ›Protecting Confidential Information
Password-protecting sensitive computer files; Marking confidential information clearly as such, and ensuring that paper copies are shredded before disposal; and. Ensuring that you only disclose confidential information to those who need to know.
- Explain the role of confidentiality in your work. Begin your answer by explaining how you expect to interact with confidential information in your role. ...
- Describe actionable steps. ...
- Review the outcome of your behavior. ...
- Use general examples.
Example: 'Firstly, I would tell my colleague that it's wrong of them to be sharing such information, especially if our contracts say that we cannot divulge such matters to our colleagues. Secondly, I would inform them that I do not plan to share this information with anyone else, so that it remains confidential.
What can you say if the answer is confidential? ›The most appropriate way to answer this question is by clearly stating that you would not ever disclose details about your work that are not public, not even with close friends or members of your family.
How do you list confidentiality skills? ›Here's how confidential correspondence is used on confidential secretary resumes: Maintain confidential correspondence, filing, telephone communication. Handled all official company confidential correspondence. Prepare, maintain and process a variety of confidential correspondence, records and reports.
Why is it important to maintain confidentiality in the workplace? ›Failure to properly secure and protect confidential business information can lead to the loss of business/clients. In the wrong hands, confidential information can be misused to commit illegal activity (e.g., fraud or discrimination), which can in turn result in costly lawsuits for the employer.
What are five examples of breach of confidentiality? ›- Disclosure of Employees' Personal Information. ...
- Client Information Is Obtained by Third Parties. ...
- Loss of Trust. ...
- Negative Impacts on Your Business. ...
- Civil Lawsuits. ...
- Criminal Charges.
The most common patient confidentiality breaches fall into two categories: employee mistakes and unsecured access to PHI.
What are the golden rules of confidentiality? ›
accurate, timely and secure: Ensure that the information you share is necessary for the purpose for which you are sharing it, is shared only with those people who need to have it, is accurate and up-to-date, is shared in a timely fashion, and is shared securely.
What happens if you share confidential information? ›The person guilty of the breach may find themselves blacklisted, which can result in the inability to conduct business. The guilty person, who may work in a niche industry, may gain a long-lasting or permanent bad reputation, making conducting business impossible.
What are examples of information that can be disclosed without consent? ›Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance.
What is the most confidential information? ›Top Secret is the highest level of classified information. Information is further compartmented so that specific access using a code word after top secret is a legal way to hide collective and important information. Such material would cause "exceptionally grave damage" to national security if made publicly available.
What information is considered privileged? ›"Privileged communications" refer to all information exchanged between an individual and a health care professional related to the diagnoses and treatment of the individual.
What are some potential consequences of violating the confidentiality rule? ›Individuals who breach confidentiality are subject to corrective action up to and including termination of employment. In addition, civil and criminal penalties can be assessed under HIPAA for PHI violations.
What is the difference between privileged information and confidential information? ›Confidentiality refers to the professional norm that information offered by or pertaining to clients will not be shared with third parties. Privilege refers to the disclosure of confidential information in court or during other legal proceedings.
What if a lawyer knows his client is lying? ›If the client refuses to disclose his misconduct, then the lawyer has a duty to inform the court and/or opposing party of the false evidence or testimony.
What information is not privileged? ›Non-Privileged Records . Means documents and records, whether hard copy or electronic, which are not subject to any legal privilege preventing its discovery and/or disclosure in a legal proceeding.
Does copying an attorney on an email make it privileged? ›There is no attorney-client privilege protection when communications are intentionally provided to a third-party.
How do I destroy attorney-client privilege? ›
Waiver by communication to a third party -- One of the most common ways to waive the privilege is to have a third party present at the time of the communication. Waiver also occurs when a client or lawyer later discloses privileged information to a third party.
How strong is attorney-client privilege? ›The attorney-client relationship is one of the strongest and most confidential professional affiliations. When someone retains an attorney, that attorney enters into a legally-binding agreement in which he or she cannot disclose the client's secrets or information to others.
What are the exceptions to privilege? ›- Death of a Client. ...
- Fiduciary Duty. ...
- Crime or Fraud Exception. ...
- Common Interest Exception.
Several exceptions to the requirement for informed consent include (1) the patient is incapacitated, (2) life-threatening emergencies with inadequate time to obtain consent, and (3) voluntary waived consent.
What is one exception to the fiduciary duty of confidentiality? ›In general, the “fiduciary exception” to the attorney-client privilege provides that a fiduciary cannot withhold communications with an attorney from trust or estate beneficiaries when the legal services were related to trust or estate administration and the fiduciary used trust or estate funds to pay for the legal ...
When can you break confidentiality rules? ›Breaking confidentiality (telling someone else about information that has been disclosed to you) can be a grey area. So, it's important to have an agreed policy on how and when to break confidentiality. We suggest your policy enables you to break confidentiality if: There is immediate danger.
What are 5 situations in which consent Cannot be given? ›Consent cannot be given by individuals who are underage, intoxicated or incapacitated by drugs or alcohol, or asleep or unconscious. If someone agrees to an activity under pressure of intimidation or threat, that isn't considered consent because it was not given freely.
What are the 3 general principles of consent? ›For consent to be considered valid: it must be voluntary. the patient must have the mental capacity to consent. the patient must be properly informed.
What are the 3 types of informed consent? ›The informed consent process involves three key features: (1) disclosing to potential research subjects information needed to make an informed decision; (2) facilitating the understanding of what has been disclosed; and (3) promoting the voluntariness of the decision about whether or not to participate in the research.
What is not included in confidentiality? ›Notwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available or becomes publicly available through no action or fault of the recipient party, (ii) was already in the recipient party's possession or known to the recipient party prior to being disclosed ...
How do you handle confidential information? ›
Keep all confidential information in a secure place. Do not leave it lying on your desk top or anywhere it can be easily accessed by unauthorized persons. It is best to keep it in a locked drawer or file cabinet. You may be asked to return all confidential information, or destroy it at the option of the owner.
What are examples of confidentiality? ›Examples of confidential information include a person's phone number and address, medical records, and social security. Companies also have confidential information such as financial records, trade secrets, customer information, and marketing strategies.
What are the 7 principles of confidentiality? ›- Justify the purpose(s) of using confidential information.
- Only use it when absolutely necessary.
- Use the minimum that is required.
- Access should be on a strict need-to-know basis.
- Everyone must understand his or her responsibilities.
- Understand and comply with the law.
Confidentiality is important because:
It prevents misuse of confidential information (illegal or immoral use). It protects reputation. Employment may depend on it (e.g. non-disclosure agreement). It ensures compliance with the law.