March 01, 2015 EXP

The ABA’s Puzzling and Counterintuitive Confidentiality Rule

Thomas E. Spahn

Lawyers who began practicing before 1983 became familiar with the confidentiality duty articulated in the 1969 ABA Model Code of Professional Responsibility—which nearly every state adopted. The ABA Model Code prohibited lawyers from revealing clients’ “confidence[s]” or “secret[s].” ABA Model Code DR 4-101(B). The former referred to “information protected by the attorney-client privilege under applicable law.” ABA Model Code DR 4-101(A). That evidentiary doctrine generally covers intimate communications between clients and their lawyers, made in confidence and maintained in confidence. The ABA Model Code defined the word “secret” as “information gained in the professional relationship that either [1] the client has requested to be held inviolate, or [2] the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” Id.

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