The attorney-client relationship is at the crux of every legal case. It happens when a person requests legal representation from an attorney and the attorney agrees to represent that person. They then enter into an agreement setting forth the terms of their relationship.
One of the cornerstones of the attorney-client relationship is trust. A client needs to trust their attorney fully. This is important for both sides. Lawyers cannot properly represent their client if the client does not trust them enough to give them all necessary information. Most people don’t want to share information about them that might portray them in a less than favorable light. However, attorneys must be given all of the information (good and bad) so that they can represent you properly. To help further this trust, lawyers are bound to their clients by a duty of confidentiality.
Duty of Confidentiality
All attorneys are bound by Rules of Professional Conduct. Ethically, under Rule 1.6 (a), attorneys cannot “reveal information acquired during the professional relationship with 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).”
It is important to know that the duty of confidentiality does not extend just to the lawyer who represents you. It also extends to the lawyer's staff and outside attorneys or experts hired to assist in your case. Assume for example, that you were involved in a medical malpractice case and you called a personal injury lawyer. The first person you talk to might be an administrative assistant. That assistant might get some information and then have you speak with an attorney. The attorney might provide his/her intern with the details of your case and ask them to do some legal research regarding some of the issues in your case. During the course of the representation, the attorney may decide to hire a medical expert to opine on the duty of care that you were owed by a medical professional. Every single one of these people - the administrative assistant, the intern, the medical professional - is subject to the same duty of confidentiality that your attorney is subject to.
In addition, the confidentiality rule applies to more than information that you tell to your lawyer during representation. It also includes documents and any evidence acquired during the course of the representations. Using the medical malpractice example above, any emails, doctor’s notes, medical notes, expert opinions, information about damages and future damages would be covered. They could not be disclosed by your attorney or anyone in his or her office.
Many people think that this means that anything they say to their attorney must be kept confidential. That is not entirely true. There are a number of exceptions to the duty of confidentiality.
Exceptions to the Duty of Confidentiality
Rule 1.6(b) also provides circumstances under which lawyers can reveal confidential information. Provisions 2-4 focus on harm and state:
(2) to prevent the commision of a crime by the client;
(3) to prevent reasonably certain death or bodily harm;
(4) to prevent, mitigate, or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services were used;
Therefore, if during the course of the representation you disclose to your attorney that you are about to commit a criminal or fraudulent act, your attorney can disclose that information to the proper authorities. Lawyers are expected to act ethically which includes preserving life and preventing harm. For example, if you tell your attorney that your background is working with explosives and that you intend to plant an explosive device on the car of a doctor who committed malpractice in your case, and that you will “blow up” that doctor, your attorney would have an obligation to contact the police.
Interestingly, if you tell your attorney about a crime you committed prior to that attorney’s representation of you, then the attorney cannot breach your confidence. Using the same example, if instead you told your attorney that 5 years ago you heard about a doctor who committed malpractice and you planted an explosive device that detonated and killed the doctor, the attorney cannot disclose that information.
Provisions 1 and 5 of Rule 1.6(b) allow attorneys to disclose confidential information in order to follow the law. For example, there may be a situation where the judge in a case requires an attorney to disclose confidential information. Provision (6) allows disclosure to protect the attorney, stating “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.” If you decide to sue your attorney for malpractice, or bring another claim against your attorney, then the attorney is allowed to reveal confidential information in order to defend him/herself.
In addition to what is contained in the Rules, the attorney-client privilege can be destroyed by the presence of a third party when information is being communicated. In the medical malpractice example, if you insist on having your best friend at the initial meeting with an attorney, any information you provide to that attorney is no longer confidential.
The duty of confidentiality continues after a case is over. Attorneys are still under a duty to maintain your confidentiality and not provide any confidential information even after your case has concluded. This applies solely to confidential information, therefore it includes written communications between an attorney and his/her client as well as any notes the attorney took with his/her impressions.
Find a Charlotte Lawyer Near You
The Charlotte, North Carolina based lawyers at Rosensteel Fleishman, PLLC are experienced attorneys who can help you with your case. They understand the law and the importance of keeping your information confidential. Please contact our office at 704-714-1450. There is no fee for an initial consultation.