§6.1 Introduction to the Duty of Confidentiality

• Jurisdiction: Washington

I. Introduction to the duty of confidentiality

There are few duties imposed on a lawyer that are as much a part of what it means to be a lawyer as the duty of confidentiality. At the same time, it is the duty of confidentiality that is often at the heart of public protest against the legal profession. Often enough, the lawyer's duty of confidentiality stands between the parties before the court and the court's truth-finding function. Often enough, it enables a client with damaging facts to prevail in a dispute with the client's adversaries. Often enough, it enables a person guilty of a grievous crime to avoid conviction. Before we launch into a detailed analysis of the technical contours of that duty, therefore, it is important to pause for a moment to identify the rationales that have been thought to justify the duty.

A. Rationale

In judicial decisions, the rationale for the ethical duty of confidentiality is most frequently articulated in the context of rulings on the evidentiary attorney-client privilege. As the Washington Supreme Court has explained:

The attorney-client privilege has been sustained for centuries because of the fundamental benefits that accrue to society at large. The privilege "promote[s] broader public interests in the observance of law and the administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The attorney-client privilege is pivotal in the orderly administration of the legal system, which is the cornerstone of a just society. The reasoning is tripartite: to maintain the adversarial system, parties must utilize lawyers to resolve disputes; lawyers must know all the relevant facts to advocate effectively; and clients will not confide in lawyers and provide them with the necessary information unless the client knows what he says will remain confidential. The confidential relationship that exists between an attorney and client facilitates the full development of facts necessary for proper representation and encourages clients to seek legal assistance early.

The privilege also benefits society by helping to prevent crime and other misconduct by encouraging clients to disclose contemplated wrongdoing, giving attorneys a chance to discourage such acts. ...

The attorney-client privilege protects against unjust application of the law on a wide scale. In particular "[t]he attorney-client privilege benefits society by encouraging laymen to seek legal services and thereby learn their legal rights and responsibilities and obtain effective representation in litigation." ... The privilege has long been considered instrumental in achieving social good because it induces clients to consult freely with lawyers and by doing so acquire expert legal advice and representation that helps them operate within the complex legal system. ... Because the privilege encourages clients to communicate fully with an attorney, lawyers are able to defend clients vigorously against charges and to assure them that the law will be applied justly. Without an effective attorney-client privilege, clients may be inhibited from revealing not only adverse facts but also favorable information that the client might mistakenly believe is damaging.

Erosion of this privilege through willful breaches of a client's trust by an attorney is undoubtedly harmful to society because these breaches weaken the public perception that people can seek assistance and rely on an attorney as an expert and counselor "free from the consequences or the apprehension of disclosure." ... Impairing the attorney-client privilege must be avoided because "[t]he attorney-client privilege may well be the pivotal element of the modern American lawyer's professional functions. It is considered indispensable to the lawyer's function as an advocate ... [and] confidential counselor in law.¹

The rationale for the broader ethical duty is stated in the comments to the Rules of Professional Conduct as follows:

[Confidentiality] contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct.²

The Restatement of the Law Governing Lawyers echoes the same points: "The rationale ... is that confidentiality enhances the value of client-lawyer communication and hence the efficacy of legal services."³ As the Restatement commentary further observes, the traditional justification is founded on several important assumptions. First, people need to consult lawyers to vindicate their rights and/or comply with their legal obligations in our complex society. Second, that consultation requires the disclosure of all the facts to the lawyer. Third, clients would be

unwilling to disclose personal, embarrassing, or unpleasant facts unless they could be assured that neither they nor their lawyers could be called later to testify to the communication. Relatedly, it is assumed that lawyers would not feel free in probing client's [sic] stories and giving advice unless assured that they would not thereby expose the client to adverse evidentiary risk.⁴

B. Definitions

Turning to the precise language of the applicable rule, RPC 1.6, notice first that for the ethical duty of confidentiality to arise at all, the information must "relate to" the representation.⁵ Washington adopted this "nexus" requirement from the Model Rules of Professional Conduct (MRPC) of the American Bar Association (ABA). The Restatement incorporates a similar requirement. The Code of Professional Responsibility (CPR), in force in Washington until 1986, had no similar "relating to" element.⁶Under the current rule, if a client happens to disclose during the representation some important secret that has absolutely no connection to the representation, there is technically no duty on the lawyer to keep it confidential. Doubtless lawyers will, however, interpret the nexus requirement liberally, lest a connection with the representation be discerned after the cat is out of the...