Ethics in Practice, 1021 MEBJ, Pg. 146

PositionVol. 36 3 Pg. 146


No. Vol. 36 No. 3 Pg. 146

Maine Bar Journal

October, 2021


The Lawyer’s Duty Of Confdentiality: Current, Former, and Prospective Clients

Every lawyer knows (or should know) that their duty of confdentiality to their client is a bedrock principle of legal ethics.1 However, some may be less than familiar with the scope of the information subject to that duty and its application to former and even prospective clients.

A lawyer’s duty of confdentiality is owed not just to current clients; the rule extends to former clients and prospective clients, as well. Moreover, there are subtle but important differences in the extent of the duty owed, depending upon whether the client is a current, former, or prospective client. Te definition and scope of what constitutes confidential client information that is subject to this duty can also differ depending upon the status of the client.

Scope of the Lawyer’s Confdentiality Obligation: Client Confidences and Secrets

A lawyer’s duty of confdentiality is not coextensive with the scope of the attorney-client privilege. In fact, it is broader and is not subject to the same exceptions.

Te attorney-client privilege is a rule of evidence, not ethics.2 Its scope is limited to confidential communications between lawyer and client or the client’s authorized representative.3 Moreover, the communication must be “made to facilitate the provision of legal services to the client and… not intended to be disclosed to any third party other than those to whom the client revealed the information in the process of obtaining professional legal services.”4

In contrast, the lawyer’s confdentiality obligation to their client, which is codified at Rule 1.6(a) of the Maine Rules of Professional Conduct, is as follows: (a) A lawyer shall not reveal a confidence or secret of a client unless, (i) the client gives informed consent; (ii) the lawyer reasonably believes that disclosure is authorized in order to carry out the representation; or (iii) the disclosure is permitted by paragraph (b) (emphasis added).

A “confidence” is information protected by the attorney client privilege.5 A “secret” is any other information relating to the representation if (i) its revelation is reasonably likely to harm a material interest of the client; or (ii) the client has instructed the lawyer not to reveal it.6 Under this definition, information that qualifies as a client secret need not be communicated to the lawyer by the client or their representative, as would information subject to the attorney-client privilege.7

Is the Fact of the Representation and Identity of the Client Confidential?

Te ABA and a number of state ethics regulatory bodies have issued opinions declaring that even client identity is protected under Model Rule 1.6. ABA Formal Opinion 480, issued by the ABA Standing Committee on Ethics and Professional Responsibility, states, in pertinent part, that: [I]information about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confdentiality under Model Rule 1.6. Te duty of confdentiality extends generally to information related to a representation whatever its source and without regard to the fact that others may be aware of or have access to such knowledge.8

There does not appear to be any guidance on whether the teachings of ABA Formal Opinion 480 would be followed in Maine. Nevertheless, prudence counsels that a lawyer should carefully consider whether or not to disclose or confirm the identity of a client or the nature of the representation to a third party without having obtained informed consent to do so from the client. While these considerations apply in all circumstances, they are particularly important to consider when seeking a conflict waiver from another client. In those circumstances, prudence again may counsel that a lawyer first receive from the client seeking the waiver consent to reveal her/ his/its name and the extent to which the lawyer can disclose the nature of the representation.

Te Duty Not to Disclose Client Confidential Information Extends to Former Clients

Maine Rule of Professional Conduct 1.9 deals with duties to former clients. Subsection (c) distinguishes between the lawyer’s disclosure and use of confidential...

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