Issue: August, 2006
Author: John M. Burman
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Ethically Speaking - An Attorney's Ethical Obligations of Confidentiality Under the New Wyoming Rules of Professional Conduct
A lawyer has both an ethical and a legal obligation to maintain certain client confidences. A lawyer's ethical obligation has changed somewhat under the new Wyoming Rules of Professional Conduct ("the Rules"). This column discusses the general similarities between the old and the new Rules and the differences. Unless otherwise indicated, all citations are to the new Rules.
In addition to an ethical duty of confidentiality, lawyers must also adhere to a legal one. The legal obligation of confidentiality arises out of the law of agency, the law of evidence (through the attorney-client privilege) and the rules of civil and criminal procedure (which embody the work-product doctrine). Both the attorney-client privilege and the work product doctrine have recently been addressed in this column. The changes to the Rules do not change either.
When Do the Ethical and Legal Duties Apply?
The ethical duty of confidentiality applies in all situations other than attempts to obtain information through judicial or other legal processes; it will, therefore, generally be the duty which applies to prohibit the disclosure of confidential information about a client.
By contrast, the attorney-client privilege applies when communications between a lawyer and a client are sought from an attorney or a client through judicial or other legal processes, including discovery. The attorney work product doctrine applies to information created by the attorney or on behalf of the attorney in anticipation of litigation, other than communications to or from an attorney and a client. It proscribes the disclosure of an attorney’s "mental impressions, conclusions, opinions or legal theories" if they were developed in anticipation of or preparation for litigation. Regardless of whether the confidentiality obligation is ethical or legal, the power to waive it rests with the client, not with the attorney.
The Purpose Behind Attorneys’ Duty of Confidentiality
The duty of confidentiality, whether ethical or legal, exists to encourage clients to communicate "fully and frankly with counsel." This encouragement does not come without a price, and sometimes a steep one. For example, lawyers are not permitted to disclose, and juries are not permitted to hear, certain information, such as a client's confession or admission to a lawyer, information which could clarify an individual’s guilt or innocence in a criminal trial, or a client’s liability or non-liability in a civil case.
The price of confidentiality is worth paying, according to the United States Supreme Court, because maintaining confidentiality "promote[s] broader public interests in the observance of law and the administration of justice." While that may be generally true, significant inroads have already been made into the confidential relationship between a lawyer and the lawyer's client, and more are being made.
The Ethical Duty of Confidentiality: An Overview
An attorney's ethical obligation of confidentiality is now based on four Rules. First, Rules 1.6 and 1.8(b) apply to current clients. Second, Rule 1.9 establishes a duty of confidentiality regarding former clients. And third, a new rule, Rule 1.18, creates a duty with respect to prospective and former prospective clients.
As before, Rule 1.6(a) contains the basic principle, which contains one important change. A lawyer "shall not reveal confidential information relating to the representation," however it is learned and regardless of the source. The word "confidential" is in bold because it is new, it is a defined term, and the definition narrows the duty of confidentiality. The definition is discussed below. One thing that has not changed is that the ethical duty of confidentiality never ends.
The ethical duty of confidentiality includes three components. First, an attorney "shall not reveal [or use] confidential information" relating to the representation. Second, an attorney must take reasonable steps to ensure confidential information remains confidential. Third, an attorney must assert any applicable evidentiary privilege when asked to reveal confidential information as part of a judicial proceeding.
An attorney shall not reveal confidential information relating to the representation of a client.
Wyoming's rule on confidentiality is unique. The ABA's Model Rule, and Wyoming's former rule, refer broadly to "information relating to the representation of a client." Wyoming's newly adopted rule takes a different approach, limiting the ethical duty of confidentiality to "confidential information." The question thus becomes what information is confidential?
"Confidential information" is a defined term. It means "information provided by the client or relating to the client which is not otherwise available to the public." As before, the definition encompasses both information learned from a client and that learned from any other source. The phrase "not otherwise available to the public" is new to Rule 1.6 and unique to Wyoming.
The critical distinction in the new Rule is between information which is available to the public, even if not generally known, and that which is not. For example, the allegations in a complaint or some other pleading filed in a Wyoming court are available to the public, unless the case is a juvenile matter, an involuntary commitment, or some other proceeding made confidential by law. Hence, the information in pleadings is generally not confidential.
An attorney shall not use confidential information relating to the representation of a client to the disadvantage of the client.
In addition to not revealing confidential information relating to the representation, a lawyer may not use it to the disadvantage of the client, even if using information does not result in revealing it. And use can occur without revealing.
Consider a lawyer who learns from a client that the client intends to purchase several tracts of agricultural property and develop the area into residential properties. The value of the property will, hopefully, increase substantially after it is acquired, developed and sold. Without telling anyone, the lawyer purchases one of the tracts of property through a entity owned by the lawyer. The entity then sells the property, at a nice profit, to the developer, who is also the client. Such "use" of confidential information is plainly impermissible even though the information was never revealed.
The rule is clear. "A lawyer shall not use confidential information relating to representation of a client to the disadvantage of the client unless the client makes an informed decision, except as permitted or required by these Rules." Disclosure is permitted under Rule 1.6(b). It is required under Rule 3.3 (Candor to the tribunal).
The prohibition on using confidential information to the disadvantage of a client also extends to former clients. The rule contains an exception, however. That is, a lawyer may use otherwise confidential information to the disadvantage of a former client "when the information has become generally known."
The ethical duty of confidentiality arises when an attorney considers representing a prospective client.
Many of a lawyer's duties arise when the lawyer agrees to represent a client. "But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established." Until recently, no rule directly addressed a lawyer's ethical duty of confidentiality with respect to prospective clients, although the ABA's Standing Committee on Ethics and Professional Responsibility had found such a duty. Now, Rule 1.18 does.
Rule 1.18 addresses a lawyer's duties to "prospective clients." The Rule defines a "prospective client" as "[a] person who discusses with a lawyer the possibility of forming a client-lawyer relationship . . ." The Rule goes on to clarify that a lawyer "shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client."
The reason for the proscription is that "[p]rospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer's custody, or rely on the lawyer's advice." As do clients, prospective clients have a reasonable expectation that the lawyer will keep their communications confidential, regardless of whether an attorney-client relationship comes into being.
Not every person who communicates information to a lawyer is a "prospective client." "A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a 'prospective client.'"
While prospective clients have a reasonable expectation of confidentiality, their communications are necessarily limited in duration and depth. Accordingly, a prospective client "should receive some but not all of the protection afforded clients." The difference in the nature of the communications between prospective clients and lawyers results in different protection than is afforded former clients.
Rule 1.18 permits a lawyer to represent a person with interests adverse to those of a former prospective clients in the same or a substantially similar matter unless "the lawyer received information from the prospective client that could be significantly harmful to that person in the matter . . ." The critical difference between this Rule's treatment of former prospective clients and former clients is that a lawyer may not represent a person with materially adverse interests to a former client in the same or a substantially related matter. Rule 1.18, by contrast, requires a third element. That is, the lawyer must have received information that could be "significantly harmful" to the former prospective client (when it comes to former clients, a lawyer is irrebutably presumed to have received confidential information that can be used to his or her detriment.) Disqualification because a lawyer received "significantly harmful information" from a former prospective client is imputed to other lawyers in the "firm with which that lawyer is associated . . . ," thereby disqualifying them from representing the new client, as well.
Even if a lawyer has received disqualifying information from a former prospective client, the Rule allows future representation of one with interests adverse to the former prospective client if the former prospective client and the now adverse party give written consent and the lawyer who met with the former prospective client is properly screened. Such representation would not be permitted with respect to a former client under Rule 1.9(a).
The scope of an attorney’s ethical obligation of confidentiality is broad.
Despite the narrowing of attorneys' ethical obligation of confidentiality by the adoption of the new definition of "confidential information," the ethical duty remains broad. The lawyer "shall not" reveal confidential information "relating to the representation of a client," unless authorized by the client, permitted by the Rules, or otherwise permitted or required by law. How the attorney obtains confidential information is irrelevant. The obligation of confidentiality "applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source."
One issue which frequently arises regarding the duty of confidentiality is whether it applies to the identity of a client, at least until a pleading is filed or the identity is otherwise available to the public. The answer is it does. "Rule 1.6 prohibits the disclosure of a client’s identity . . . " until the identity ceases to be "confidential information" or the client consents to the disclosure. A client's identity is not, however, generally subject to the attorney-client privilege.
The starting point to analyzing whether the ethical duty of confidentiality includes a client's identity is the language of the Rule. It refers to "confidential information relating to the representation . . ." As discussed above, "confidential information" is information "relating to the client which is not otherwise available to the public." A client’s identity typically falls within that language, although a client's identity may be or become "otherwise available." Unless the client’s name becomes part of a court pleading which is available to the public, however, that will generally not be the case. And while a lawyer will generally have to identify a client to represent that client before a tribunal, a great many representations do not involve such an appearance.
A lawyer who performs estate planning services, for example, generally does not enter an appearance, until such time as the planning may be implemented through probate. In the planning stages, however, there is no reason for a lawyer to identify his or her clients, and some clients likely would prefer that their consulting a lawyer not be made known to anyone. In any event, a lawyer should not assume a client has no objection to the attorney disclosing the client's identity. As the information relates to the representation, the lawyer is duty-bound to keep it confidential unless the client consents or an exception applies.
An exception which may apply is that a lawyer "may" reveal confidential information "to the extent the lawyer reasonably believes necessary . . . to comply with other law or court order." That exception will be discussed in detail in a future column.
An attorney must take reasonable steps to ensure confidential information remains confidential.
Although the Rules are silent on a lawyer's ethical obligation to ensure confidential information remains confidential, it is clear that such a duty exists.
Several years ago the ABA's Standing Committee on Ethics and Professional Responsibility issued an opinion which addressed whether an attorney could ethically communicate via various high tech methods, including cordless and cell phones, facsimile machines, and unencrypted e-mail. The Opinion included the observation that a lawyer's ethical duty not to reveal information relating to the representation of a client "imposes a duty on a lawyer to take reasonable steps in the circumstances to protect such information against unauthorized use or disclosure." That notion was subsequently incorporated into the ABA's commentary to Rule 1.6, and has now been adopted in Wyoming: "A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure . . ." Part of acting competently is properly training and supervising subordinate lawyers and support staff. 44 "Reasonable steps" include where and how a communication is made, as well as who has access to client information.
Neither a lawyer nor the lawyer's client have a reasonable expectation of confidentiality if their communication does not occur in a confidential setting. It is one thing, for example, for an attorney to have a conversation with a client in the lawyer's office, and quite another for that same conversation to take place in a restaurant. In the former setting, both participants have a reasonable expectation of confidentiality. In the latter, they do not. The first question for the lawyer, therefore, is whether the setting of a communication with a client includes a reasonable expectation of confidentiality. If it does not, the client needs to be advised of the potential waiver of confidentiality and the loss of the attorney-client privilege so the client can make an informed decision about whether to have the conversation in such a place.
"Reasonable steps" include how the communication is made. In a face-to-face meeting, the issue is whether the setting includes a reasonable expectation of confidentiality. The same is true when other methods are chosen. The idea of a lawyer taking "reasonable steps" incorporates the concept of the objectively reasonable lawyer.
Selecting a method of communicating with a client includes the obligation of "choosing a means of communication in which the lawyer has a reasonable expectation of privacy." Given the proliferation of methods of communicating, this issue is becoming increasingly significant.
For decades, lawyer-communications that were not in-person occurred via telephone or by mail. Either method included a reasonable expectation of privacy. Today, that is no longer the case. Every day, communications occur via a multitude of new means, including cell phones, facsimile transmissions, and e-mail messages. While each technology has unique features, they all, ultimately, raise the same issue. That is, whether the participants in such communications have a reasonable expectation of privacy. The use of new methods of communication was discussed in this column a few years ago.
As far as the ethical duty of confidentiality is concerned, it doesn’t matter what method of communication a lawyer uses. The duty is always the same. When a lawyer communicates with a client, the lawyer "must take reasonable precautions to prevent the information from coming into the hands of unintended recipients." This duty "does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy."
There is no simple, bright-line test for determining whether one has a reasonable expectation of privacy. A lawyer should consider "the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement." Finally, the decision to use a method other than the traditional types of communication (face-to-face, regular mail, and land telephone lines), is the client's. The client may agree to cordless or cell phones, or the "client may require the lawyer to implement special security measures not required by the rules."
The admonition to advise a client of the potential risks of using cordless or cell phones and having them make an informed decision about using them is, of course, simply an application of a lawyer's general obligation to provide sufficient information to a client to allow the client to make an informed decision "regarding the representation." While some clients may know of the risks, many will not. And those who do may not know or understand what the loss of confidentiality means. In any event, Wyoming lawyers would do well to follow a practice of advising clients of the risks of cordless and/or cell phones, and to not use them unless the client agrees. One way to provide such notice and obtain client consent is in the lawyer's engagement letter.
E-mail has quickly gone from being a novelty to a standard feature of most law firms. And those firms which don’t have it now will probably have it soon for the simple reason that clients expect it. They have become accustomed to communicating by e-mail, and they often expect their lawyers to have that capability.
While many lawyers have become familiar with, and even addicted to, e-mail, few lawyers understand how it works. And while they don’t need to, lawyers need to stop and consider the security concerns e-mail presents. Only with such an understanding can a lawyer properly advise his or her client about the risks of e-mail communications.
Reduced to its essence, the widespread use of e-mail does not change a lawyer’s general obligation to act competently to prevent confidential information from falling into the hands of others. The use of e-mail thus presents the same question as the use of other communication technology. That is, does a lawyer have a reasonable expectation of privacy when communicating with a client by a particular method? If so, its use is ethical. If not, it is not, unless a client agrees otherwise. The use of unencrypted e-mail has been approved by the ABA.
The restrictions on using e-mail are the normal ones. That is, a lawyer should consult with the client to ensure that the client’s decision about whether to use e-mail is an informed one. Whatever the decision, the lawyer should abide by it. Once again, the engagement letter is an ideal means to advise clients of the firm’s practice of using e-mail and to obtain consent to doing so.
An attorney must assert any applicable evidentiary privilege when asked to reveal confidential information as part of a court proceeding.
While the Rules prevent a lawyer from disclosing confidential information in most circumstances, they do not prevent a lawyer from having to testify about or produce documents reflecting the lawyer's communications with a client. The reason is simple. The Rules of Professional Conduct are not rules of evidence; they neither create nor codify evidentiary privileges. Such evidentiary rules do exist, however, and they contain potentially applicable privileges, and lawyers have an ethical duty to know about and assert those privileges.
The attorney-client privilege protects an attorney’s communications with a client, and the work-product doctrine protects a lawyer's "mental impressions, conclusions, opinions, or legal theories." As with any evidentiary privileges, they are waived if not properly and timely asserted.
If confidential information is sought during discovery in a civil case, a lawyer must follow a two-step procedure. First, "[w]hen a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly . . ." Simply making the objection, however, is not enough. The lawyer must then "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. The second step, describing the nature of the documents, is commonly referred to as preparing and providing a "privilege log."
If asked or ordered to reveal confidential information as part of a judicial proceeding, a lawyer "should assert on behalf of the client all nonfrivolous claims . . . that the information sought is protected against disclosure by the attorney-client privilege or other applicable law." If disclosure is ordered after the proper objection has been raised, the lawyer "must consult with the client about the possibility of appeal . . . . Unless review is sought, however, paragraph (b)(4) permits the lawyer to comply with the court's order."
The ethical duty of confidentiality is broad, and will remain broad after the changes to the Rules become effective on July 1, 2006. Everything related to the representation is confidential, even a client's identity, until it becomes "otherwise available to the public." That will generally happen after an attorney enters an appearance in a matter that is not closed. Until that time, the lawyer must maintain the confidentiality of the information. To do so, the lawyer must take reasonable steps to ensure that all members of the firm, including non-lawyers, act reasonably to preserve confidentiality. Further, a lawyer must make any appropriate objection to preserve that confidentiality. That will generally mean to assert the attorney-client privilege or the work product doctrine when appropriate, unless the client makes an informed decision to waive that protection. The confidentiality principle extends to "use" of the information to the disadvantage of a client, not just revealing the information.
New Rule 1.18 makes it clear. The ethical obligation of confidentiality begins when a lawyer, or a non-lawyer member of the lawyer's firm, communicates with a prospective client. Even if the prospective client never becomes a client, the information remains confidential forever, just as does information regarding former clients.
A number of exceptions exist regarding the ethical duty of confidentiality. They will be discussed in the next issue of the Wyoming Lawyer.
John M. Burman teaches professional responsibility at the University of Wyoming College of Law. If there are issues you would like to see addressed in this column, Professor Burman may be reached by e-mail at firstname.lastname@example.org.
The views and opinions expressed and included in "Ethically Speaking" are those of the author only and do not constitute an opinion, finding or viewpoint, official or unofficial, of the Wyoming State Bar or the Board of Professional Responsibility.
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