Focus on Ethics & Civility

• Jurisdiction: Utah,United States
• Pages: 51
• Citation: Vol. 36 No. 5 Pg. 51
• Publication year: 2023

Focus on Ethics & CivilityVol. 36 No. 5 Pg. 51Utah Bar JournalOctober, 2023

Focus on Ethics & Civility

Our Client Confidentiality Rules Are Stricter Than You Think

by Keith A. Call and Gregory S. Osbourne

Imagine your next-door neighbor asks you to represent them. Can you disclose to your spouse that you represent your next-door neighbor in a legal matter without disclosing any details? The answer is "no," at least not without first obtaining written consent from your neighbor after full disclosure. That is the conclusion reached by the Utah Ethics Advisory Opinion Committee (EAOC) in an April 2021 Ethics Opinion. See Utah State Bar Ethics Adv. Op. Comm., Op. No. 21-01 (Apr. 13, 2021) (Opinion).

When we read the Opinion for the first time, we were struck by its breadth. Sorry to put a damper on everyone's cocktail party, but by our observation there are a lot of rule violations going on out there. Let us try to help.

The Rule and the Opinion

The relevant rule is Utah Rule of Professional Conduct 1.6(a)-(b), which appears in a sidebar to this article.

The EAOC was asked two questions about this rule: (1) "May a lawyer ethically disclose the name of her client?" and (2) "When is the lawyer prohibited from revealing the source of her fee and/or the terms of her fee agreement when representing a client?" Opinion ¶¶ 1-2. The EAOC answered, "Rule 1.6 of the Utah Rules of Professional Conduct establishes the default position that the identity of a client, the source of funding for attorneys' fees, and the fee agreement are confidential, unless an express exception is found in either Rule 1.6(a) or 1.6(b). Id. ¶ 18 (emphasis added).

If even the identity of the client is confidential and may not be disclosed, just how far does this Rule extend? The Opinion answers this question too. "The default rule under Rule 1.6(a) of the Utah Rules of Professional Conduct is that ALL information relating to the representation of a client is confidential." Id. ¶ 7 (emphasis added).

The EAOC seems to mean it: "Wrongful disclosure of Confidential Information by an attorney is serious. "˜Shall' is an imperative. It defines "˜proper conduct for purposes of professional discipline.'" Id. ¶ 8 (citing Utah R. Pro. Conduct, Preamble: A Lawyer's Responsibilities, ¶ 14).

The Opinion discusses three exceptions: (1) informed consent of the client, confirmed in writing and never assumed; (2) implied authorization to carry out the representation...