The duty of confidentiality imposed upon attorneys by Model Rule of Professional Conduct 1.6 is extensive. Comment [3] to the rule states that absent one of the limited exceptions set forth in 1.6(b), attorneys are required to protect all information related to the representation, whatever its source. This means that everything about the representation is confidential, even the fact of the representation itself. Many attorneys misunderstand the duty of confidentiality, erroneously believing that only information that is secret or not a matter of public record is subject to the duty of confidentiality. The Comment to the confidentiality rule makes it clear that the concept of secrecy has nothing to do with the duty of confidentiality.
Part of this frequent misunderstanding may stem from attorneys confusing attorney-client privilege with the duty of confidentiality. Though privilege and confidentiality are certainly related issues and many tactics to protect the confidentiality of information will also protect the privilege of the information, it is essential to understand that these concepts are distinct from each another. The duty of confidentiality still attaches to information and issues that may not be subject to attorney-client privilege, including information that is part of the public record, such as client identities.
To reveal confidential information relating to the representation of a client, an attorney must either get the client’s informed consent to the disclosure, the disclosure must be impliedly authorized to carry out the representation, or one of the exceptions to confidentiality in Rule 1.6(b) must apply.
Client’s Informed Consent to Disclosure
To obtain appropriate informed consent from a client to your disclosure of confidential client information, you are required to communicate and explain thoroughly the “material risks of and reasonably available alternatives to” making the disclosure. See Model Rule of Professional Conduct 1.0(e), which defines “informed consent.” In this particular situation where your client is a famous person, it is hard to fathom why the client would give informed consent to the disclosure. Most famous clients prefer their private legal matters be kept discretely out of the public eye.
One final note on client informed consent to disclosure: though Rule 1.6 does not require it, it would be wise to confirm the client’s consent in writing and keep a copy in your records. This may prevent a client from alleging a violation of confidentiality in the future when they had previously consented to the disclosure.
Disclosure Impliedly Authorized to Carry Out the Representation
Comment [5] to Rule 1.6 states that lawyers are impliedly authorized to make disclosures about their clients when appropriate in carrying out the representation, including the implied authority to admit a fact that cannot properly be disputed or make a disclosure that facilitates a satisfactory conclusion to a matter. For example, you would be impliedly authorized to concede certain facts in negotiation with opposing counsel if doing so would result in a favorable settlement. There is nothing about this language that could be interpreted to allow you to dish with your friends about your famous client’s identity.
Other Exceptions to Confidentiality under 1.6(b)
There are a few limited exceptions to an attorney’s duty of confidentiality set forth in subparagraph (b) to Rule 1.6, and any attorney mulling a disclosure of confidential client information should review these exceptions carefully. Though the analysis of these exceptions would be too lengthy and nuanced to review here, it is sufficient to say that none of the exceptions would apply to revealing a client’s identity to friends simply because it is a cool fact.
This is also true when dealing with issues of promoting your business or blogging about client matters. While it might drive business to your firm to tell everyone about your famous client roster, you are prohibited from doing so without first obtaining the client’s informed consent. See ABA Formal Opinion 480: Confidentiality Obligations for Lawyer Blogging and Other Public Commentary for more information about this issue.
Confidentiality Duties Attach to Your Staff Too
If you want to tell everyone about your famous client, imagine how others in your office must feel! It is important to remember that Rule 5.3 also extends the duty of confidentiality to nonlawyer assistants by requiring that you make reasonable efforts to ensure that the law firm puts policies in place to guarantee that your nonlawyer assistants’ conduct comports with your own ethics obligations.
Comment [1] of Rule 5.3 states that you are responsible for any conduct by a nonlawyer assistant that violates the Model Rules of Professional Conduct if you ordered or ratified the conduct or you knew about it at a time when consequences could have been avoided or mitigated but failed to take reasonable remedial action. This means that, even if the nonlawyer assistant’s disclosure comes as a complete surprise to you, you still need to take proper mitigating steps as quickly as possible to avoid a violation of the rule.
While it is important to consider which steps must be followed if an employee divulges confidential client information, the best practice would be to put procedures in place that would prevent such disclosure from ever occurring at all. Proper employee training is critical to ensure all nonlawyer assistants and support staff fully understand the duty of confidentiality and all other duties imposed upon an attorney and a law firm by the Model Rules of Professional Conduct. Many attorneys misunderstand this duty themselves, so don’t expect your nonlawyer staff to get it without having it laid out for them. Ensure they understand that posting pictures of famous clients who come into the office is just as off-limits as telling opposing counsel about your trial strategy.
