Standards for the Provision of Civil Legal Aid

Standard 7.3 on Practitioner’s Responsibilities to Protect Client Confidences

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Standard

A practitioner must not disclose information relating to representation of a client except as authorized by the client or by pertinent ethical rules and laws.

Commentary

General considerations

The duty to protect client confidences lies at the heart of effective representation that depends on a high level of trust between practitioner and client. Furthermore, a practitioner cannot effectively represent a client without full knowledge of the facts relevant to the matter, including those that may be detrimental or embarrassing to the client. Candid communication between the practitioner and client about such facts depends on the client being certain that the communication will be kept confidential in keeping with the practitioner's professional responsibilities.

Both the practitioner and the provider have a responsibility to protect confidences of clients from unauthorized disclosure. The duties of the provider with regard to confidential information are discussed in Standard 4.3 on Protecting Client Confidences. The practitioner has an independent and equally strong duty to protect the information obtained in the course of representation from disclosure, unless the client consents to the disclosure, it is implicitly authorized in order for the practitioner to carry out the representation or it is otherwise permitted by law.

Scope of the protection

Practitioners must abide by the ethical rule regarding client confidentiality in the jurisdiction in which they practice. Generally, the rule covers the broadest range of information provided by the client, applying "… not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source."  The practitioner's duty of confidentiality extends to applicants for service whom the practitioner may have interviewed, even if the person was not accepted for representation. The duty of confidentiality also continues after the attorney-client relationship has ended.

Risks of unauthorized disclosure

There are several risks of inadvertent disclosure of confidential information against which a practitioner should guard. The first is in conversations with a client or applicant in the provider's waiting room or other public space. It is essential that interviews be conducted in a setting where confidential information provided by the applicant cannot be overheard by persons who are not employed by the provider. Second, the practitioner should be certain that notes from interviews, confidential documents and information displayed on computer screens are not visible to unauthorized persons. Third, the practitioner should avoid casual conversations inside and outside the office in which confidences might be overheard by non-provider personnel.

Fourth, the practitioner may encounter requests for information regarding a client's income from opposing counsel, adversaries and others, sometimes in an attempt to challenge the client’s eligibility in order to gain tactical advantage in a case. The practitioner should resist requests for such information, unless the client consents to the disclosure, or it is specifically authorized under ethical rules. Occasionally, a funding source may request information about a client. Most such requests will be made to management of the provider, but in the event one is made to a practitioner, the matter should be referred to the appropriate authority within the provider for resolution.

Fifth, special confidentiality concerns arise with regard to clients who are hearing impaired or have limited proficiency in English and who require the services of interpreters. The practitioner should be aware of the potential impact on confidentiality when a third party acts as an interpreter in a communication between an applicant or client and the practitioner. A practitioner should, whenever possible, use the services of a professional or qualified volunteer interpreter who is responsible to the provider so that the confidential and privileged nature of the communication is clearly preserved. The practitioner should assure that all such interpreters are aware of the responsibility to protect from disclosure any information communicated between the applicant or client and the provider.

Authorized disclosure

A practitioner should be familiar with the ethical rules in its jurisdiction regarding the authorized disclosure of confidential information. Generally, information relating to the representation can be disclosed when the client gives informed consent. Disclosure may be implicitly authorized by the client's approval of a course of action that requires the disclosure in order for the practitioner to carry out the representation. When particularly sensitive information is involved, however, the practitioner should explicitly discuss the disclosure with the client and obtain consent before the information is revealed.

In addition, there are also a number of specific, limited circumstances when a practitioner may disclose otherwise protected information; generally to prevent undue, substantial harm to others, to foster compliance with ethical requirements, to defend against charges leveled at the practitioner or to comply with other law or a court