Privileges & Confidentiality

Policy and Ethical Rules on protection of confidential information.

Cross-References:

• Practice Guide: Privileges, Logs & Confidentiality 
• Procedure: Document Management in SharePoint
• Upcounsel: How to Maintain Client Confidentiality
• Microsoft: SharePoint Online Security: A Team Effort 
• Microsoft: Basic Security Setup for Office 365

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 this 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:

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:

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 six most common mistakes are listed and discussed below:

The only solution to this problem is to carefully verify that the email addressees are correct. If you see an email address that you can’t confirm as a proper recipient to your email, delete it. We sometimes set up group email addresses for convenience, such as when we want our status reports to be seen by a number of clients or insurance representatives. Unless you are personally certain of the addressees who are included in a group email, individually list the addressees manually. If you need to know who is on a group email list, check with our Director of Litigation Support.

You must always check the entire address section of the email before hitting “SEND” if you are using “Reply All.”

Watch what you say, and where you say it. When speaking with a client, ensure that the conversation can’t be overheard. A special case arises when speaking with a client by telephone or video-conference. In these conversations, it is not possible to easily verify who is listening on the other end. If a listener is not a client, do not discuss confidential attorney-client subject matter until the client is alone. Also, be very aware that telephone calls and video conferences are easily recorded, and even a well-meaning client may inadvertently share the recording with third parties, friends and others. It is your duty to explain to the client under such circumstances that doing so can result in a judicial determination that the attorney-client communication privilege has been waived.

SharePoint permissions settings are explained in our Policy: Document Management in SharePoint. Until you have been made an administrator by the Firm, you simply must not alter the permissions settings in SharePoint for any reason. The permissions settings in SharePoint follow a hierarchical structure, and operate counter-intuitively, so don’t try to figure these settings out on your own until you have been fully trained. 

Don’t post anything related to clients or cases on social media without the express permission of the President of. the Firm. Further, communications with members of the press relating to client matters or other confidential material must be approved on a communication-by-communication basis by the President of the Firm.

Don’t delegate document production to junior associates or LSS staff. Ensure that the steps in , follow the steps outlined in our Procedure: Document Management in SharePoint.

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
• 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.

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© Brett Godfrey 2022. All rights reserved. No portion of this material may be duplicated, disseminated or reproduced without express written permission from the author.