Privileges & Confidentiality

The Firm’s Policy and governing Professional Rules regarding protection of confidential information.

Contents:

Protecting Confidential Information Is Essential

Law firms are required by law to carefully maintain and keep secret information relating to the representation of a client. Every person working in a law firm must adhere to these requirements, including attorneys and support staff. Every person employed at this Firm is expected to diligently and conscientiously adhere to the requirements set forth in this Policy in order to safeguard privileged information and protect against any possibility of inadvertent or unauthorized disclosure of confidential client information, attorney-client communications or attorney work product.

All three of these categories of information are considered strictly confidential and are protected by legal privileges. While those privileges are subject to certain exceptions under the law, the policy of this firm is that those exceptions must be carefully and intentionally analyzed by a senior attorney before protected information is disclosed. These exceptions may not be used as excuses to cover inadvertent disclosure, or to justify carelessness in the handling of confidential materials.

The Rules of Professional Responsibility 

The Colorado Rules of Professional Responsibility are nearly identical to the ethical requirements of most other states. Regarding Confidentiality of Information, the governing Rule in Colorado is Rule 1.6 of the Colorado Rules of Professional Responsibility. The Rule is set forth below:

Rule 1.6. Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to reveal the client’s intention to commit a crime and the information necessary to prevent the crime;

(3) to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(4) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(5) to secure legal advice about the lawyer’s compliance with these Rules, other law or a court order;

(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information is not protected by the attorney-client privilege and its revelation is not reasonably likely to otherwise materially prejudice the client; or

(8) to comply with other law or a court order.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

The above Rule governs disclosure of information pertaining to an actual client of the Firm. Please study that Rule carefully and note the seven exceptions that permit a lawyer to disclose confidential information even though the client has neither authorized nor consented to the disclosure.

In addition to protecting confidential information relating to actual clients, a separate provision, Rule 1.18 of the Rules of Professional Responsibility, governs information supplied to the Firm by prosepctive (potential) clients. That Rule states: 

Rule 1.18. Duties to Prospective Client

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

(1) both the affected client and the prospective client have given informed consent, confirmed in writing; or

(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(ii) written notice is promptly given to the prospective client.

Common Breaches of Confidentiality

Sadly, the most common cause of a law firm’s breach of confidentiality is simple carelessness. 

The good news is that by being very careful, nearly all kinds of inadvertent disclosures can be avoided.

The “bad example” boxes below list the most common mistakes:

 

eMail Auto-Address: Most email programs, including those used by this Firm, automatically fill in (or "auto-populate") addresses for outgoing email after a few characters are entered. It is easy to fail to check that the addressees are correct before hitting "SEND."
eMail Reply All: When replying to an email, it is easy (but very dangerous) to hit "Reply All" to a group email without thinking about whether ALL of the recipients should read what you are now sending. You must always check the entire address section of the email before hitting "SEND" if you are using "Reply All."
Careless Speaking: When you conduct a live or telephonic discussion with a client in the presence of a third person who is neither an actual client nor an employee of the Firm, the conversation is generally not protected as an attorney-client communication. Further, when you conduct a conversation in public (including on airplanes, in restaurants, courtroom hallways or lobbies of businesses), you risk being overheard unless you scan in every direction before speaking and keep your voice down. Remember that, unlike light, sound travels around corners. Finally, avoid bragging and gossip that includes reference to sensitive material.
Permissions Settings: When you create a new sub-site in SharePoint or use any other cloud storage service for document sharing, you may accidentally fail to set the permission correctly and thereby give access to unintended recipients. [Note: the link to the portion of the Procedure for Creating New Case Subsites in SharePoint which describes setting permissions is here.]
Social Media: Clients, witnesses and even law firm staff have been known to inadvertently mention confidential material in public postings or web-sites that are not secure, and thus divulge protected information.
Document Production by Untrained Personnel: When pre-disclosure document review is delegated to personnel lacking the proper training, it is common for protected material to be disclosed, or withheld improperly or without proper and timely log supplementation of the Privilege Log.

The Difference Between Privilege and Confidentiality

Many lawyers are confused regarding the differences between privilege and confidentiality. Both the duty of confidentiality and the attorney-client privilege are designed to encourage clients to trust in their lawyers, to tell them everything needed to provide competent legal representation in criminal and civil matters, and thus ensure fairness of the judicial system. Confidentiality, on the other hand, is established in Rule 1.6, above, and pertains to both a lawyer’s disclosure of confidential information and a lawyer’s use of confidential information.

Legal and Evidentiary Privileges

There are two types of privilege that apply directly to lawyers and law firms. These are the:

  • attorney-client privilege; and
  • work-product privilege.

Attorney-client privileges are generally created by common law. For example, in United States v. United Show Machine Shop, the court held that the privilege applies only if: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

While a court may order disclosure of information clearly within the bounds of a lawyer’s duty of confidentiality, if a court determines that the attorney-client privilege applies to a communication, the communication cannot be compelled; in other words, the protection is absolute.

This absolute protection is in contrast to the application of the work product doctrine set forth in Federal Rule of Civil Procedure 26(b)(3), which protects from disclosure material prepared in anticipation of litigation. Even if a court determines that material is work product, a court can compel the production of work product if the opposing party proves substantial need for the material and undue hardship in accessing the virtual equivalent of the materials through other means.

In addition, lawyers must recognize and protect other legally recognized privileges, such as the:

  • priest-penitent privilege (which forbids judicial inquiry into certain oral and written communications between clergy and members of their congregation)
  • doctor-patient privilege
  • marital privilege
  • 5th Amendment privilege against self-incrimination.

In fact, there are many other kinds of privilege, including:

  • accountant-client privilege
  • mediation privilege
  • deliberative process privilege
  • psychotherapist-patient privilege
  • reporters’ privilege (Shield Law)
  • state secrets privilege
  • judicial privilege; and 
  • other statutory privileges
Confidentiality

The lawyer’s duty of confidentiality applies to a much broader scope of information than those covered by the common-law privileges above (some of which are codified as statutes in various states.) An example of confidential information would be found in a situation where a lawyer represents a client obtains knowledge about that client’s business or personal life, health, investments, property interests or other sensitive or proprietary information. 

The Firm’s standard fee agreements and retention or engagement letters must contain detailed disclosures to the client that in the course of representation of that party in litigation, certain disclosures are mandatory and if not made can result in substantial damage to the client’s case.

The follow-up communications a lawyer has with a client must confirm that disclosure of client records (including those obtained from other sources (such as doctors, employers and accountants, for example), must be produced.

Conclusion

It is vitally important to exercise great care in protecting confidential and privileged information. This can only be achieved through careful study of the rules mentioned in this Policy and to perform additional research and study to enhance that understanding as individual circumstances dictate. The law governing these protections is complex and not intuitive, so there is no substitute for careful study.

 
COMMUNICATE IN WRITING! Many legal malpractice cases have been brought against lawyers who allegedly disclosed confidential information without client authorization, and a surprising number of those cases have proven successful merely because the lawyer was lazy in documenting the client’s authorization to disclose the information.