§ 38.02 Professional Responsibility Distinguished

• Jurisdiction: United States

§ 38.02 Professional Responsibility Distinguished

The attorney-client privilege should be distinguished from an attorney's obligations under the rules of professional responsibility. Model Rule 1.6(a) states that lawyers "shall not reveal information relating to representation of a client," with limited exceptions. "The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source."¹¹

In short, the attorney-client privilege is limited to communications, and the ethical rule covers all information obtained as a result of the representation.¹² Moreover, an evidentiary privilege applies only in legal proceedings, while the ethical rule applies outside them as well.¹³

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Notes:

^[11] Model Rule 1.6, Comment. See State v. Gonzalez, 234 P.3d 1, 11 (Kan. 2010) ("In contrast to the attorney-client privilege, which is a rule of evidence and applies only when the attorney 'may be called as a witness or otherwise required to produce evidence concerning a client[,]' the attorney's ethical duty of confidentiality under the disciplinary rules 'applies in all situations other than those where evidence is sought from the lawyer through compulsion of law.'").

^[12] See United States v. Stepney, 246 F. Supp. 2d 1069, 1073-74 (N.D. Cal. 2003) ("The attorney-client privilege limits only the power of a court to compel disclosure of attorney-client communications or otherwise admit the communications themselves...