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Guideline A-2 on the Practitioner's Responsibilities to Protect Client Confidences

Guideline A-1Table of Contents | Guideline A-3


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.


General Considerations

Every person who seeks assistance from a legal aid organization should be regarded as a prospective client whose information is entitled to appropriate protection pursuant to applicable rules of professional conduct and other law. Unless and until the legal aid organization has given a person who inquires about assistance a clear explanation that no attorney-client relationship exists, the rules of confidentiality apply. 

The duty to protect information relating to the representation lies at the heart of effective representation that depends on a high level of trust between the 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. 

The duties of the organization with regard to such information are discussed in Standard 5.4 on Protecting Client Confidences. The practitioner has a responsibility to protect information relating to the representation from unauthorized and inadvertent disclosure and unauthorized access. The practitioner has an independent and equally strong duty to protect the information, including data and metadata collected by communication platforms used by the practitioner and 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 the rules of professional conduct or law.

Scope of the protection

Practitioners must abide by the applicable ethical rules regarding client confidentiality in the jurisdiction in which they practice. Generally, Model Rule 1.6 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 organization'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 organization. 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 of the office in which confidences might be overheard by non-organizational 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 organization, but in the event one is made to a practitioner, the matter should be referred to the appropriate authority within the organization 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 organization so that the confidential and privileged nature of the communication is clearly preserved. The practitioner should ensure that all such interpreters are aware of the responsibility to protect from disclosure any information communicated between the applicant or client and the organization.

Sixth, the practitioner should take reasonable measures to protect communications with clients from cyberthreats and other risks of inadvertent or unauthorized disclosure.

Authorized disclosure

A practitioner should be familiar with the ethical rules in their jurisdiction regarding the authorized disclosure of confidential information. Primarily, information relating to the representation can be disclosed when the client gives informed consent. But, 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. If the client has diminished capacity or is legally subject to decision-making by a parent, guardian, or conservator, the client's own consent may not be sufficient.

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 order.

The practitioner should be familiar with state professional requirements and the law regarding such disclosure and should consult with the organization on whose behalf the client is being represented regarding whether the disclosure is permitted.