Professional Responsibility; Confidentiality

August 17, 2014

Attorneys are regulated in several ways. In Arizona we must pass the bar exam after graduating from law school. We must pass a professional responsibility exam. (That requirement came along after I started practicing, so I missed the privilege.) The Arizona Supreme Court’s Committee on Character and Fitness must bless each applicant, deciding whether he or she has sufficient character and fitness to practice law.

Once we’re admitted, we must adhere to the Rules of Professional Conduct, a set of about 55 substantive rules, most with subparts and all with comments. (Between 2001 and 2003 I spent almost two years on a committee of 17 attorneys and judges who rewrote these rules. Fourteen full-day sessions in Phoenix, plus lots of in-between work.) If we don’t, discipline comes, and it can include everything from an admonition to disbarment.

I practice a bit in this area. Just a bit because, although I’m one of only a few attorneys who represent attorneys with discipline problems, the number of cases that come up, especially in the Tucson area, is very small. I do also lecture on ethics and professional responsibility matters, and consult with attorneys and law firms about issues before they become discipline cases.

One of the core ethics areas is confidentiality. With limited exceptions, attorneys must maintain as confidential client matters. Many people believe this rule—it’s Ethical Rule 1.6—means attorney-client conversations are inviolate. True it is, mostly, that conversations between attorneys and clients cannot be shared with others, but ER 1.6 goes much further. (The conversation limitation really focuses on the attorney-client privilege, a related concept.) Plain and simple, and subject to certain exceptions, attorneys cannot discuss client matters, even when the information may be public.

What does this mean? It means your business, when you bring it to me, is between us and nobody else. It’s not for me to be telling people about your case, discussing the legal issues, etc. That is an important element of the attorney-client relationship, and it means what it says.

Exceptions? There are several. Arizona has been a leader regarding disclosures to protect against bodily harm to someone as a result of a crime. When the present rules regimen was first adopted in the early 1980s, the model rules did not permit disclosures for even this purpose, but Arizona gave attorneys the right to make the decision. With the 2001-3 rewrite, Arizona made disclosure in this circumstance mandatory. So if a client mentions plans to harm someone, confidences be damned and the attorney must speak up.

Attorneys may disclose information about a crime that has been or may be committed, where the client used the attorney’s services, and where disclosure will help prevent or rectify “substantial injury to the financial interests or property of another ….” Other exceptions include disclosures:  to get advice about following the rules; when attorney and client are fighting about services or fees; when a judge directs an attorney to disclose; and “to prevent reasonably certain death or substantial bodily injury” not associated with a crime.

ER 1.14, which addresses representing people with diminished capacity, includes an effective exception to ER 1.6, where disclosures may be necessary to further the representation of the person with the limitations. Thus, in appropriate circumstances attorneys can talk with family members, service providers, etc. about otherwise confidential matters.

ER 1.6, as applied, allows attorneys to discuss matters with other members of their firm. So if you hire me, expect me to benefit from the knowledge and wisdom of the 20 other attorneys in my firm. The other members of my firm and all of the support staff, though, are bound as I am by ER 1.6.

Finally, ER 1.6 assumes a client does not want matters discussed with others. That said, I have on several occasions had clients who talk about their cases with their friends, who are people I also know. All of that is fine, until the friends expect me to “give them the skinny” about my client’s case. Absent consent, which will be in writing and signed by the client, it won’t happen!

The confidentiality provisions set forth in ER 1.6 are core to my profession. None of us are perfect—I know from time to time I have mentioned the fact that X or Y is a client, and the discipline authorities are not focused on those situations—but clients benefit greatly from the fact that attorneys don’t discuss their clients’ business.


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