1.6:210 DEFINITION OF PROTECTED INFORMATION

• Jurisdiction: Arizona

1.6:210 Definition of Protected Information

ER 1.6 is the primary substantive basis for the lawyer's duty of confidentiality, and it broadly proscribes the disclosure of any "information relating to representation" of a client unless the client consents or impliedly authorizes disclosure. While Rule 41(f), Rules of the Arizona Supreme Court, specifies, as one of the duties and obligations of members of the State Bar of Arizona, the duty "to maintain inviolate the confidences and preserve the secrets of a client," it should be construed as consistent with ER 1.6, which was adopted later in time, rather than as limiting the scope of information subject to the confidentiality requirement. Thus, absent the permission of the client, and unless one of the exceptions stated in the Rule applies, a lawyer may not reveal confidential information nor use it to the disadvantage of the client. See Lake Havasu Cmty. Hosp., Inc. v. Ariz. Title Ins. & Tr. Co., 141 Ariz. 363, 377, 687 P.2d 371, 385 (App. 1984) (lawyer retained by insurance company to defend insured cannot reveal to insurance company information learned from client or during course of engagement that might prejudice insured's right to insurance coverage), overruled on other grounds by Barmat v. John and Jane Doe Partners A-D, 155 Ariz. 519, 524, 747 P.2d 1218, 1223 (1987).

The client does not have to indicate which information is to be confidential, nor may the lawyer speculate. All information is presumptively confidential unless the client does not treat the information as such. See ER 1.6 cmt. [2]; Alexander v. Super. Ct., 141 Ariz. 157, 685 P.2d 1309 (1984). The obligation of confidentiality applies in every situation, and not solely in testimonial and discovery proceedings, as is the case with the attorney-client privilege. Information relating to the representation is protected by ER 1.6 without regard to its nature or source, or the fact that others share the knowledge. Thus, in Arizona Ethics Opinion No. 97-05, the Committee determined that the presence of a third person, such as in interpreter, parent, or advocate, while it might impact the applicability of the attorney-client privilege, did not affect the lawyer's duty of confidentiality under ER 1.6.

The duty of non-disclosure covers the periods before and after the formation of the attorney-client relationship as well as during the relationship. See State ex rel. Hyder v. Super. Ct., 128 Ariz. 253, 255, 625 P.2d 316, 318 (1981). A lawyer must...