Vol. 29, No. 4 #1 (August 2006). ETHICALLY SPEAKING.

• Author: An Attorney's Ethical Obligations of Confidentiality Under the New Wyoming Rules of Professional Conduct

Wyoming Bar Journal

2006.

Vol. 29, No. 4 #1 (August 2006).

ETHICALLY SPEAKING

WYOMING LAWYER August 2006/Vol. 29, No. 4 ETHICALLY SPEAKING An Attorney's Ethical Obligations of Confidentiality Under the New Wyoming Rules of Professional Conduct

By John M. Burman A lawyer has both an ethical and a legal obligation to maintain certain client confidences. A lawyer's ethical obligation has changed somewhat under the new Wyoming Rules of Professional Conduct(fn1) ("the Rules"). This column discusses the general similarities between the old and the new Rules and the differences. Unless otherwise indicated, all citations are to the new Rules.

In addition to an ethical duty of confidentiality, lawyers must also adhere to a legal one. The legal obligation of confidentiality arises out of the law of agency,(fn2) the law of evidence (through the attorney-client privilege(fn3)) and the rules of civil and criminal procedure (which embody the work-product doctrine).(fn4) Both the attorney-client privilege(fn5) and the work product doctrine(fn6) have recently been addressed in this column. The changes to the Rules do not change either.

When Do the Ethical and Legal Duties Apply?

The ethical duty of confidentiality applies in all situations other than attempts to obtain information through judicial or other legal processes; it will, therefore, generally be the duty which applies to prohibit the disclosure of confidential information about a client.(fn7)

By contrast, the attorney-client privilege applies when communications between a lawyer and a client are sought from an attorney or a client through judicial or other legal processes, including discovery.(fn8) The attorney work product doctrine applies to information created by the attorney or on behalf of the attorney in anticipation of litigation, other than communications to or from an attorney and a client. It proscribes the disclosure of an attorney's "mental impressions, conclusions, opinions or legal theories" if they were developed in anticipation of or preparation for litigation.(fn9) Regardless of whether the confidentiality obligation is ethical or legal, the power to waive it rests with the client, not with the attorney.10

The Purpose Behind Attorneys' Duty of Confidentiality

The duty of confidentiality, whether ethical or legal, exists to encourage clients to communicate "fully and frankly with counsel."(fn11) This encouragement does not come without a price, and sometimes a steep one. For example, lawyers are not permitted to disclose, and juries are not permitted to hear, certain information, such as a client's confession or admission to a lawyer, information which could clarify an individual's guilt or innocence in a criminal trial, or a client's liability or non-liability in a civil case.

The price of confidentiality is worth paying, according to the United States Supreme Court, because maintaining confidentiality "promote[s] broader public interests in the observance of law and the administration of justice."(fn12) While that may be generally true, significant inroads have already been made into the confidential relationship between a lawyer and the lawyer's client, and more are being made.(fn13)

The Ethical Duty of Confidentiality: An Overview

An attorney's ethical obligation of confidentiality is now based on four Rules. First, Rules 1.6 and 1.8(b) apply to current clients. Second, Rule 1.9 establishes a duty of confidentiality regarding former clients. And third, a new rule, Rule 1.18, creates a duty with respect to prospective and former prospective clients.

As before, Rule 1.6(a) contains the basic principle, which contains one important change. A lawyer "shall not reveal confidential information relating to the representation," however it is learned and regardless of the source.(fn14) The word "confidential" is in bold because it is new, it is a defined term, and the definition narrows the duty of confidentiality. The definition is discussed below. One thing that has not changed is that the ethical duty of confidentiality never ends.(fn15)

The ethical duty of confidentiality includes three components. First, an attorney "shall not reveal [or use] confidential information" relating to the representation. Second, an attorney must take reasonable steps to ensure confidential information remains confidential. Third, an attorney must assert any applicable evidentiary privilege when asked to reveal confidential information as part of a judicial proceeding.

An attorney shall not reveal confidential information relating to the representation of a client.

Wyoming's rule on confidentiality is unique. The ABA's Model Rule, and Wyoming's former rule, refer broadly to "information relating to the representation of a client." Wyoming's newly adopted rule takes a different approach, limiting the ethical duty of confidentiality to "confidential information."(fn16) The question thus becomes what information is confidential?

"Confidential information" is a defined term. It means "information provided by the client or relating to the client which is not otherwise available to the public."(fn17) As before, the definition

encompasses both information learned from a client and that learned from any other source. The phrase "not otherwise available to the public" is new to Rule 1.6 and unique to Wyoming.

The critical distinction in the new Rule is between information which is available to the public, even if not generally known, and that which is not. For example, the allegations in a complaint or some other pleading filed in a Wyoming court are available to the public, unless the case is a juvenile matter,(fn18) an involuntary commitment,(fn19) or some other proceeding made confidential by law. Hence, the information in pleadings is generally not confidential.

An attorney shall not use confidential information relating to the representation of a client to the disadvantage of the client .

In addition to not revealing confidential information relating to the representation, a lawyer may not use it to the disadvantage of the client, even if using information does not result in revealing it. And use can occur without revealing.

Consider a lawyer who learns from a client that the client intends to purchase several tracts of agricultural property and develop the area into residential properties.(fn20) The value of the property will, hopefully, increase substantially after it is acquired, developed and sold. Without telling anyone, the lawyer purchases one of the tracts of property through a entity owned by the lawyer. The entity then sells the property, at a nice profit, to the developer, who is also the client. Such "use" of confidential information is plainly impermissible even though the information was never revealed.

The rule is clear. "A lawyer shall not use confidential information relating to representation of a client to the disadvantage of the client unless the client makes an informed decision, except as permitted or required by these Rules."(fn21) Disclosure is permitted under Rule 1.6(b). It is required under Rule 3.3 (Candor to the tribunal).

The prohibition on using confidential information to the disadvantage of a client also extends to former clients.(fn22) The rule contains an exception, however. That is, a lawyer may use otherwise confidential information to the disadvantage of a former client "when the...