Q: I want to ask my attorney's opinion about a legal matter that is highly embarrassing and would hurt my travel agency if it were revealed to competitors. Is there really a law that requires attorneys not to reveal confidential information that their clients tell them, or is the attorney's obligation just a sort of tradition? Can the lawyer even reveal that I am his or her client without my permission?
A: There is indeed a law that prohibits attorneys from revealing confidential client information, and attorneys who violate it can be disbarred, which means that they can no longer practice their profession.
If the violation is accidental, the lawyer can still be disbarred, but it is more likely that the state agency charged with enforcement will reprimand or suspend the attorney.
Every state has adopted a version of the American Bar Association's Rules of Professional Conduct, and the rules have the force of law. Rule 1.6 states: "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent; the disclosure is impliedly authorized in order to carry out the representation; or the disclosure is permitted by [the next] paragraph."
Information "relating to the representation of a client" would usually include the client's identity, which the lawyer could not reveal without the client's consent.
A client can give "informed consent" to revealing confidential information if the lawyer provides "adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." A disclosure would be "impliedly authorized in order to carry out the representation" if the lawyer needed to include facts in a court filing or application to a government agency.
The next paragraph of the rule lists six exceptions to the rule of confidentiality, such as when disclosure would prevent "certain death or substantial bodily harm" or prevent a fraud, or when a court orders a lawyer to reveal confidential information. These exceptions are rare, and, as everyone who watches lawyer shows on television knows, there is no exception for revealing a past crime that the client committed.
A court will almost never order an attorney to reveal confidential information because of another legal rule called the attorney-client privilege, which applies in court litigation and arbitration. So when the other side in litigation or arbitration asks for copies of communications (such as e-mails) between client and attorney, the court allows the attorney to refuse to provide copies of correspondence with the client about the case or any related legal matter.
In court litigation or arbitration, there is another rule that protects documents that the lawyer or his firm prepares, even if the documents are not communications with the client. This is the work-product privilege, and it also prohibits a lawyer from revealing the case strategy unless the client consents.
So the law protects client information under the ABA rule, the attorney-client privilege and the work-product privilege. That is why clients can freely tell their lawyers embarrassing and confidential information without fear of disclosure.
Mark Pestronk is a Washington-based lawyer specializing in travel law. His Legal Briefs column appears regularly in Travel Weekly. To submit a question for Legal Briefs, e-mail Pestronk at [email protected].