Keep Quiet & Lawyer On

I often remind lawyers of something that Thomas Edison said:

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of every one of them.”

I do so because Rule 1.6 is quite clear: a lawyer shall not disclose information relating to the representation of a client.

Of course, there are exceptions. In Vermont, the exceptions are:

  • the client gives informed consent to the disclosure;
  • disclosure is impliedly authorized to carry out the representation;
  • disclosure is required by Rule 1.6(b);
  • disclosure is permitted by Rule 1.6(c).

Among things that aren’t exceptions to the prohibition against disclosure:

  • but Mike, it wasn’t privileged.

Comment [3] to Rule 1.6 makes it eminently clear that the professional duty of confidentiality is much broader than the privilege.  To wit:

  • “[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.”

I think sometimes we get careless with how much information we share.  Or, maybe it’s not carelessness. Maybe it’s that we get too comfortable sharing any at all.  Here’s where that slope gets slippery.

Last week, and as reported by the ABA Journal and the Legal Profession Blog, the Ohio Supreme Court sanctioned two lawyers who shared client confidences.

The lawyers, who were in a romantic relationship, practiced the same type of law and did not work in the same firm.  It appears as if one would ask for help with various documents requested by clients, and the other would respond by sending documents prepared for similarly situated clients. Unfortunately, the requests for help & responses went well beyond “hey, do you have a standard Form A you could send me?”

Is this a stark example? Yes.  But, I seriously doubt that the conduct originated as follows:

(scene: Lawyer & Attorney having coffee in their kitchen (birds chirping, soft breeze flutters the curtain))

  • Lawyer: Hey – you know what would be fun?
  • Attorney:  What’s that?
  • Lawyer:  Sharing confidential information with each other?
  • Attorney:  Damn. Good point. Let’s do it.

Rather, I’m guessing that they got careless.  Their romantic relationship probably allowed them to.

Don’t get comfortable sharing information about your clients.  Whenever you can, keep quiet and lawyer on.




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