Many of the inquiries I receive involve a lawyer’s duty of confidentiality. The duty is set out in Rule 1.6. Paragraph (a) prohibits a lawyer from revealing “information relating to the representation of a client” unless:
- the client gives informed consent;
- disclosure is impliedly necessary to carry out the representation;
- disclosure is required by Rule 1.6(b); or,
- disclosure is permitted by Rule 1.6(c).
Remember: the ethical duty is not to reveal “information relating to the representation of a client” unless one of the exceptions is present.
Anyhow, too often, we use the words “confidential” and “privileged” interchangeably. While related, they are different concepts. On the distinction, Comment  is helpful:
- “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.”
In my view, a lawyer has an ethical duty not to disclose information relating to the representation of a client, as well an ethical duty to act competently to protect the privilege.
In blog posts and videos, I’ve mentioned & recommended Brian Faughnan’s blog Faughnan On Ethics. In one of his recent posts, Brian suggested that his readers follow another site as well: Presnell on Privileges. I join Brian’s suggestion – PoP looks like a fantastic resource for anyone with questions on the evidentiary privilege.
Plus, when the first post I see refers to lobster and “the most New England crime ever,” how could I resist??!!?