CHAPTER 1 - 1-7 CONFIDENTIALITY

• Jurisdiction: United States

1-7 Confidentiality

1-7:1 General Rule-Confidentiality, Work Product and Privilege

1-7:1.1 Ethical Duty of Confidentiality

Confidentiality is one of the core concepts that differentiate attorney-client relationships from other forms of commerce. The duty of client confidentiality is often confused and conflated with attorney-client privilege and work product. Confidentiality is an ethical duty. It mandates that a lawyer keep secret virtually everything about a client's representation. While the concepts of privilege and work product protection apply only to "compelled speech,"¹⁷⁶ the ethical duty of confidentiality is broader than either work product or privilege and applies to all information relating to the representation of a client.¹⁷⁷

Work product is a civil procedure issue and concerns an attorney's mental impressions, conclusions, opinions, and legal theories concerning work done relating to the representation of a client.¹⁷⁸ It can be defined as the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation. Privilege is an evidentiary concept and deals protecting communications between a client and a lawyer related to legal representation. The ethical duty of confidentiality is broader than either work product or privilege and applies to all information relating to the representation of a client.¹⁷⁹ The duty of confidentiality survives the death of the client.¹⁸⁰ A fiduciary may waive the privilege against the disclosure of protected communication between a deceased client and her attorney.¹⁸¹ Compliance with the duty of confidentiality may prevent an attorney from bringing suit against her employer if doing so would reveal client confidences.¹⁸²

A lawyer must reveal client confidences to the extent the lawyer reasonably believes necessary to prevent a client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm.¹⁸³ This provision in Connecticut's version of Rule 1.6 varies from the model rule which permits, but does not require, disclosure in such circumstances. The commentary to the rule explains that this mandatory duty reflects the fact that the "overriding value of life and physical integrity" overwhelms confidentiality in such circumstances.¹⁸⁴

A lawyer may reveal client confidences to the extent the lawyer reasonably believes necessary to prevent a criminal or fraudulent act that the lawyer believes is likely to result in substantial interest to the property of another,¹⁸⁵ to prevent, rectify, or mitigate the consequence of a client's criminal or fraudulent act in the commission of which the lawyer's services were used,¹⁸⁶ to secure legal advice about the lawyer's compliance with the ethical rules,¹⁸⁷ to comply with the law or a court order,¹⁸⁸ or to detect and resolve conflicts arising from the lawyer change of employment.¹⁸⁹ A lawyer may also reveal client confidences to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.¹⁹⁰

The exceptions allowing for disclosure in certain instances, as with the common law "crime-fraud" rules discussed herein following, are designed to allow an attorney who is concerned that her conduct was used to facilitate the commission of a crime to effectively renounce a possible conspiracy.¹⁹¹ In order for an attorney to reveal a confidence for the purpose of preventing fraud under Rule 1.6(c)(2), the attorney must (1) reasonably believe such revelation is necessary; (2) reveal the information only to the extent the attorney reasonably believes is necessary; (3) reasonably believe the client has or is committing a fraudulent act; and (4) reasonably believe the attorney's services had been used in committing that fraudulent act.¹⁹²

One area of confidentiality where the rule seems to be honored more in the breach than the observance relates to lawyers sharing information on cases with each other through databases, list-servs, brief banks and articles in the legal press touting their recent successes. Even a casual reading of Rule 1.6(a) will show that there is no exception to the duty of confidentiality for matters that have become generally known or which are discoverable in public fora such as courthouses. Many practitioners believe that Rule 1.9(c)(1), which permits a lawyer to use otherwise confidential information against a former client when it has become "generally known," operates to vitiate the duty of confidentiality whenever information becomes either publically known or easily discoverable.¹⁹³ But this is not the case. This rule deals with former client conflicts only.

Thus, it can be argued that absent client consent, everything about a representation should be held in confidence and that lawyers who publish information on their clients and their cases do so at their risk. Nevertheless, the rule addresses when a lawyer may "reveal" confidential information, and some have argued that if a matter has become generally known or publically available, the lawyer in publicizing it is not revealing anything. However, best practice is to obtain client consent before publicizing their case rather than hope that disciplinary authorities will agree with one, rather than the other, reading of the rule.

Compliance with the duty of confidentiality also includes a duty to take reasonable measure to protect against inadvertent or unauthorized disclosure of client confidences.¹⁹⁴ Special circumstances may warrant special precautions.¹⁹⁵ This duty has become a large problem with the advent of computer-assisted communications and social media. Hardly a week goes by without an article on the dangers of off-site data storage, hacking attacks on law firm computers, or of lawyers exposing client confidences by losing laptop computers or removable "thumb" drives.¹⁹⁶ Cyber security has become a major concern for lawyers and law firms.¹⁹⁷

1-7:1.2 Work Product

The work product rule applies to and protects not only documents and tangible things prepared by an attorney in his or her work, especially the mental impressions and conclusions contained in them.¹⁹⁸ The attorney's work must have been in preparation for or in response to litigation.¹⁹⁹ The work being inquired into must have formed an essential step in the procurement of the data which the opponent seeks, and the attorney must have performed duties normally attended to by attorneys.²⁰⁰ The work product rule protects an attorney's interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and other tangible and intangible items.²⁰¹ The work-product privilege "is distinct from and broader than the attorney-client privilege."²⁰²

Opinion work product includes such items as an attorney's legal strategy, his intended lines of proof, his evaluation of the strengths and weaknesses of his case, and the inferences he draws.²⁰³ Opinion work product is not always readily apparent from a mere description of the material sought to be disclosed. It may consist of highlighting of words, or omission of certain facts, or ordering of facts in a document or in the selection and compilation of otherwise discoverable documents in an indexed database prepared by the attorney.²⁰⁴ The mere fact that a document may contain opinion or legal theories of an attorney is insufficient to cloak it with work product protection. The document must still be prepared by or for an attorney for a client with a view towards pending or anticipated litigation in which that client is a party.²⁰⁵

Work product jurisprudence is decided under the rules of civil procedure.²⁰⁶ Practice Book § 13-3 allows discovery of work product only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case, and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.²⁰⁷ An attorney's opinion work product in such documents and tangible things is absolutely protected under section 13-3.²⁰⁸ Once a party establishes that a document constitutes fact work product, it is not discoverable absent a showing of "substantial need"; in contrast, opinion work product is not discoverable absent a "highly persuasive showing" of need.²⁰⁹

1-7:1.3 Privilege

Privilege is an evidentiary concept, invoked when an inquiry intrudes into the communications between lawyer and client.²¹⁰ Privilege matters are decided under the law of evidence. Communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice, but statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality.²¹¹ The privilege extends to the giving of information to the lawyer to enable counsel to give sound and informed legal advice.²¹² The presence of certain third parties, however, who are agents or employees of an attorney or client, and who are necessary for consultation, will not destroy the confidential nature of the communications.²¹³ The privilege accorded communications between attorney and client extends to communications made through agents for communication.²¹⁴ Privilege may cover work done or statements made to a paralegal who is supervised by a lawyer.²¹⁵

The attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice.²¹⁶ Materials prepared in anticipation of meeting with a lawyer may be covered by the attorney-client privilege if they relate to the giving of information for the purpose of obtaining legal advice.²¹⁷ A communication from an attorney to a client, in contrast to a communication from a client to an attorney, is normally not within the...