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What’s the big ID?
By Susan J. Michmerhuizen
ABA Center for Professional Responsibility
Consider the following hypotheticals, each involving circumstances where caller ID announces who is making the phone call:
You are the director of a state agency that provides a variety of legal services to disabled people who may live in group homes where they do not receive telephone calls directly; they go through the home’s office. This means that the clients cannot control who answers the phone and thus when a lawyer calls them, the fact of the representation is revealed to the person receiving the call.
You are a partner in a family law practice. A fact pattern that frequently repeats in your firm involves an unhappy husband or wife who calls from their home for an initial consultation, wondering what might be involved in a divorce and strongly desiring that the consultation be kept confidential. How can you return their calls?
You focus your law practice in bankruptcy work. Frequently individuals consult you about their finances and often ask if the consultation is confidential. They ask you to act with discretion.
In all of the above hypotheticals, a question arises about the consequences of caller identification carrying the firm name when a call is returned.
The fact that a lawyer is representing a client is confidential information. This may come as a surprise to some lawyers, who understand the concept of confidentiality as protecting information relating to the representation, but not necessarily the fact of it. Certain clients have a heightened desire for confidentiality about the fact that they have consulted or hired a lawyer, others are comfortable revealing that they have “lawyered up” and freely give their lawyer’s name. Either way, that decision is for the client to make. In general, individuals contemplating divorce or bankruptcy prefer discretion. People who are well known or in the public eye may have a desire to keep the fact of their legal business quiet. There are also individuals with a range of disabilities who may not have control over who answers their phone or email but who retain the right to privacy in this area.
States differ on the specific definition of confidential information in their versions of ABA Model Rule 1.6. Most jurisdictions follow the inclusive phrasing of Rule 1.6 and state that information relating to the representation is protected as confidential. A handful of states have used the phrasing from the Model Code, which discussed the reaches of confidentiality as “confidences and secrets.” The Code defined a “confidence” as “information protected by the attorney-client privilege” and a “secret” as “other information gained in the professional relationship that the client has requested be kept in confidence or information that would be embarrassing or would be likely to be detrimental if disclosed. Under either formulation, the fact that a lawyer represents a client is considered confidential information that can only be disclosed with consent of the client or if an exception to Model Rule 1.6 applies, such as the disclosure of the client’s identity is impliedly authorized to carry out the representation.
See, e.g. California Ethics Op. 2007-173, 23 Law. Man. Prof. Conduct 553 (2007) (client’s identity may be a confidence or secret); District of Columbia Ethics Op. 312 (2002) (client’s name may be protected under Rule 1.6 when confidences and secrets terminology is used); Illinois Ethics Op. 12-03 (2012) (client’s identity is confidential); Philadelphia Bar Association Op 2006-4 (2006) (legal services organization may not submit a list of client names, addresses and telephone numbers to a “list enhancement service”; client consent to the disclosure would be required); South Carolina Ethics Op. 90-14 (1990) (lawyer may not volunteer identity of client); Texas Ethics Op. 479 (1991) (law may not tell bank who firm’s clients are); Utah Ethics Op. 97-04 (1997) (law firm may not provide client list with names, addresses and telephone numbers to other businesses unless all clients consent).
Bar journal articles offer guidelines to lawyers in firms where client identity is likely to be a sensitive subject. See, e.g. … The Initial Consultation with Your Divorce Attorney: What to Expect When You Don’t Know What to Expect By John F. Schaefer and Mark A. Bank The Law Firm of John F. Schaefer [Published for the State Bar of Michigan Section on Family Law Client Guide].
These articles stress the importance of training all staff in the importance and specifics of confidentiality. When returning calls to clients, staff is instructed not to leave any message except to call the lawyer back. No other information is to be conveyed, not even the fact that the person is calling from the individual lawyer’s office. If asked, they are to say that it is a personal matter.
… A difficult question arises when your “conflicts check” reveals a conflict. It would be inappropriate, for example, to tell your client’s or your prospective client’s spouse that you cannot represent him or her because doing so would create a conflict. Revealing that you represent the spouse discloses confidential information. … My firm has been known to assign pseudonyms to our notable clients so that even our own staff is less aware of their presence. Notable clients, however, are not the only clients who need protection. We have had clients who did not want their secretaries or receptionists to know what was happening in their personal lives. Once again, a pseudonym was used, but this time we were the ones to assume a different name when we called the client. Also, obtain Caller ID blocking for your fax machine and erase any trailer that may contain your telephone number or company name.
- Ron Anteau and Nancy Wolff, Keeping Secrets Secret: Safeguarding Client Confidentiality in Your Law Office, Volume 17, Number 6 September 2000 Law Practice Management Magazine
To the extent that a lawyer’s caller ID that appears on a receiving telephone screen might under some circumstances result in the unintended disclosure of a lawyer-client relationship, paragraph 4 of the Comment to Rule 1.6 Confidentiality of Information warns lawyers to be careful not to reveal information that could lead to the discovery of confidential information:
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. …
Paragraph 18 of the Comment, which was added pursuant to the ABA Ethics 20/20 Commission’s recommendations in 2012, mandates acting competently in maintaining client confidentiality:
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.… 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.…
Sometimes the existence of a lawyer-client relationship can be sensitive information that the client would not like to have disclosed. While we have not seen an instance where lawyers have been subject to professional discipline for a disclosure that comes about from using caller ID, this is an area where sensitivity is important and an essential element of client relations. While the use of caller ID may not in and of itself amount to a disclosure of client confidences, lawyers should consider the particular facts and circumstances of a particular client matter that may require heightened discretion.
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