II. Lawyers' Ethical Obligations with Respect to Client Information

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

II. Lawyers' Ethical Obligations with Respect to Client Information

Disputes over the receipt and review of confidential information belonging to others are usually the fodder of motions for disqualification, sanctions, or evidentiary rulings. Lawyers' concerns about the treatment of confidential information, however, extend beyond those bounds. Indeed, the scope of confidential information under rules of professional conduct and lawyers' ethical obligations to protect such information for clients should be placed front and center in any discussion of the many issues that modern lawyers face relating to the receipt and review of confidential information.

A fundamental first principle for any discussion of these issues is the recognition that the scope of attorney-client privileged information, information afforded immu nity under the work product doctrine, and information protected as confidential under the Model Rules of Professional Conduct differ significantly. The attorney-client privilege is a critical component of evidence law and, of course, a storied and ancient privilege. Likely every lawyer has heard it at one time or another described as the oldest common law privilege known.¹ "The privilege's central concern—and its ultimate justification—is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice."² The form of the communication is irrelevant to privilege analysis as long as the communication is intended to be confidential; it is the act of communicating that counts. The privilege attaches to initial consultations between prospective clients and attorneys, even if the attorney is not ultimately re-tained.³ Thereafter, the client may invoke the privilege any time during the attorney-client relationship or after the relationship terminates.⁴ The privilege even survives the client's death.⁵

Yet the attorney-client privilege, because it serves to obstruct efforts to uncover the truth by providing a mechanism for shielding relevant information, is strictly construed in its scope and application. For example, the privilege ordinarily does not protect a client's identity.⁶ The privilege does not cloak the mere fact that an attorney-client relationship exists, when it began, the general nature of the services for which the attorney was retained, or the terms and conditions of the attorney's engagement.⁷ While the privilege protects the content of an attorney-client communication from disclosure, it does not protect against disclosure of the underlying facts by those who communicated with the attorney.⁸

The protection afforded under the work product doctrine is broader than the privilege in terms of the array of information it shields from discovery.⁹ Work product immunity is not limited, as is the attorney-client privilege, to confidential communications between an attorney and a client.¹⁰ The work product doctrine protects lawyers' effective trial preparation by immunizing certain information from discovery, including materials prepared by attorneys' agents and consultants.¹¹ The doctrine is rooted in courts' desire to foreclose unwarranted inquiries into attorneys' files and mental impressions in the guise of liberal discovery.¹² The work product doctrine is codified in Federal Rule of Civil Procedure 26(b)(3) and its state counterparts. Rule 26(b)(3) provides in pertinent part:

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.¹³

The scope of confidential information under ethics rules is even broader still. Model Rule of Professional Conduct 1.6(a) establishes that what is confidential from an ethics standpoint (and, thus, what cannot be disclosed absent some exception to confidentiality) is not simply privileged information or information that a client might find embarrassing, but "information relating to the representation of a client."¹⁴ Further, although many lawyers struggle with the ramifications of the rule's plain text, there should be no doubt that the duty of confidentiality under Model Rule 1.6 is intended to extend to all information relating to the representation of a client. As a comment to Rule 1.6 explains, lawyers' duty of confidentiality applies not only to matters communicated in confidence by a client but "to all information relating to the representation, whatever its source."¹⁵ Thus, and by way of example, lawyers' duty of confidentiality prevents them from revealing clients' identities even though the attorney-client privilege does not. Another comment to Model Rule 1.6 explains that a lawyer can use hypotheticals to discuss certain issues relating to the representation of clients if he or she can do so without the listener figuring out who the lawyer is talking about. The comment establishes that the prohibition in Model Rule 1.6(a) applies not only to communications that directly reveal information relating to a representation, but also to those that "could reasonably lead to the discovery of such information by a third person."¹⁶

A readily understandable difference between the scope of the privilege and the scope of confidentiality under Rule 1.6 can be grasped through the following hypothetical.

Assume that an attorney represents the owner of a cleaning service in the defense of a negligent hiring lawsuit filed after a maid stole from a house she was cleaning. The attorney and client are discussing the economy and its impact on the client's business. The client explains that, to keep the business running, she is considering lowering employees' salaries and solicits the lawyer's thoughts on whether this would be a sound business strategy. The lawyer does her best to provide some cogent business advice about the impact that lowering salaries could have on employee morale versus increased business volume. The communication between the attorney and the client in which the attorney offered business advice to the client would not be subject to the attorney-client privilege.¹⁷ Yet, the same communication is confidential under Model Rule 1.6 because it is information relating to the attorney's representation of the client.

The scope of Rule 1.6 becomes most puzzling to lawyers, however, upon the realization that, taken literally, the language of the rule extends confidentiality even to information that is already generally known by others or that is a matter of public record.¹⁸ The American Law Institute has attempted in the Restatement (Third) of the Law Governing Lawyers to rein in the scope of confidentiality from going so far as to seem counterintuitive by omitting protection for client information that is generally known from its definition of "confidential client information."¹⁹ The wisdom of that attempted narrowing probably is a matter of personal judgment and perspective. For example, the fact that information relating to a client's representation is available somewhere in the public domain does not mean that it is commonly known or ascertainable by those from whom the client might want it kept, or who might use it to the client's disadvantage. Although it is true that requiring a lawyer to maintain confidentiality serves little purpose when information relating to a client's representation is generally known, it is also true that in many instances it is potentially unwise to assume that a lawyer's duty of confidentiality is excused because everyone already knows about the subject information. Information assumed to be generally known may in fact not be. In other words, there probably are many clients who consider Model Rule 1.6(a) to appropriately express lawyers' duty of confidentiality.

In addition to establishing confidential treatment for a vast amount of information, as a result of amendments to the Model Rules adopted after the completion of the work of the ABA Commission on Ethics 20/20, Model Rule 1.6 now addresses lawyers' obligations to protect against inadvertent or unauthorized disclosures in the black letter of the rule. Model Rule 1.6(c) declares that lawyers "shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."²⁰ These obligations had previously been discussed only in comments to the rule.²¹ Two (now quite repetitive if not actually redundant) comments to Model Rule 1.6 further elaborate on the nature of lawyers' related obligations:

[18] Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1, and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the

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