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Tuesday, July 28, 2009

The Ethical Duty of Confidentiality and the Attorney-Client Privilege

Lawyers often misunderstand the differences between the Ethical Duty of Confidentiality [Rule 1.6 of the VA or ABA Rules of Prof. Conduct] and the "Attorney-Client Privilege." There are some similarities but first and foremost the scope of information protected under the ACP is much more narrow than information protected under Rule 1.6. The ACP only protects the essence of a communication made in confidence between a client and a lawyer when the client is seeking legal advice or representation. Information from other sources given by the client to the lawyer does not make that information protected under the ACP. For example, a client's ordinary business records do not become privileged by handing them over to their lawyer. Lawyers often believe a client's file is "privileged" when in fact most of the material in the file is not likely protected under the ACP.

On the other hand, under ABA Model Rule 1.6, any information relating to the representation of a client is protected as confidential under Rule 1.6 even though it is not "privileged" under the ACP. In certain instances, even the client's identity or the fact of the representation may be information protected under Rule 1.6, meaning that the lawyer and/or her staff cannot disclose that information unless the client consents. Also, that fact the information relating to the representation is known or shared by others, or even "a matter of public record" does not remove that information from Rule 1.6's protection. Even if the client has shared the same information with others--which would waive protection under the ACP--a lawyer cannot reveal that information to others without client consent.

Virginia's version of Rule 1.6 is not quite as broad in scope as ABA Model Rule 1.6. Virginia's rule protects a client's "confidences," i.e., information protected under the ACP and "secrets" any other information which either the client has requested be kept confidential or which, if disclosed, would be "detrimental or embarrassing to the client."

Like information protected under the ACP, information protected under Rule 1.6 remains confidential and that protection survives the termination of the lawyer-client relationship and even the death of the client.

The ACP is an evidentiary doctrine meaning that a client's adversary is not entitled to discover, use or admit into evidence information that is protected under the ACP. A party in litigation may be entitled to a protective order as to matters that are privileged under the ACP or work product doctrine. A court commits legal error if it incorrectly orders a party to disclose information that is protected under the ACP. Such a ruling may leave a party and their lawyer with a difficult choice because generally rulings made on the ACP occur in the context of pre-trial discovery and there is generally no interlocutory appeal that may be taken to challenge the court's decision. A party may refuse to comply with an order requiring disclosure of information that the party insists is privileged and be found in contempt. The contempt order is a final order from which an appeal may be taken. On the other hand, if the party complies with the court's order and discloses information it unsuccessfully defended as protected under the ACP, the privilege will be deemed waived, and subsequent appeal of an adverse decision will be of no avail.

Unlike the ACP, the ethical duty of confidentiality is not an evidentiary matter and may not serve as a basis to resist a court's order to disclose information otherwise protected under Rule 1.6. Both the ABA and Virginia Rule 1.6 permit lawyer to disclose information otherwise protected under the rule when required by law or a court order.

Information protected under the ACP may be disclosed if the client consents or if there has been a waiver of the privilege. The ACP does not attach to communications by and between jointly represented clients and their common lawyer. The ACP does not apply if the client is communicating with a lawyer for the purpose of securing legal advice to commit a crime or fraud. This is called the "crime fraud" exception to the ACP. A client will be deemed to have waived the ACP if he or she accuses the lawyer of wrongdoing or unethical conduct or if a dispute arises between the lawyer and the client relating to the representation. Under those circunstances, the lawyer may reveal information that would otherwise be privileged when necessary to defend herself against the client's accusations of misconduct or to establish a claim against the client for unpaid legal fees. Similar exceptions apply to information protected under Rule 1.6. Under ABA Rule 1.6 the lawyer may reveal information necessary to prevent serious bodily injury or death to another, or to prevent the client from committing a crime or fraud that is reasonably certain to cause substantial economic injury to another, or to mitigate the consequences. Under Virginia's Rule 1.6 a lawyer must reveal the client's stated intent to commit any crime and must advise the court if the client insists on committing perjury or has perpetrated a fraud on the court. Under ABA Model Rule 3.3, a lawyer must take remedial measures if the client insists on committing perjury or if the lawyer has submitted evidence or information that the lawyer has since learned is false or fraudulent

A lawyer may be "impliedly authorized" to disclose information protected under Rule 1.6 if necessary to carry out the representation of the client. Information given by the client to non-lawyer support staff employed by the lawyer (paralegal or secretary) may also be protected under both the ACP or Rule 1.6.

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