Is my secret safe?
Two can keep a secret. But must they? One of the main expectations of the client and one of the most important duties the attorney has toward the client is that of confidentiality. To ensure that the client can have honest and open communication with the attorney, the attorney must not reveal anything related to the representation of the client without the client’s consent or without an applicable exception.
This duty to keep the client’s information confidential often starts at the time of the initial consultation, even if no attorney-client relationship is later formed, and it lasts indefinitely, even after the attorney-client relationship entered into has ended or after the death of the client.
While the duty of confidentiality is very important, it, however, is not absolute. There exist situations in which the attorney may or even must reveal the client’s confidential information.
The attorney may reveal the client’s information with the client’s consent. The client can give the attorney their expressed informed consent to do so. Client consent can also be implied to the extent that the attorney needs to reveal information necessary to carry out the representation.
The attorney must reveal information relating to the representation of the client to the extent that the attorney reasonably believes it is necessary in order to prevent a crime that is likely to result in reasonably certain death or substantial bodily harm.
The attorney may reveal the client’s confidential information to the extent that the attorney reasonably believes it is necessary to do so in order to prevent reasonably certain death or substantial bodily harm.
The attorney may also reveal the client’s confidential information in order to prevent the client from committing a crime or a fraud or to mitigate or rectify the consequences of the client’s criminal or fraudulent act, in furtherance of which the client has used or is using the attorney’s services such as, for example, if the client used the attorney to draft a contract defrauding investors. But, before revealing any confidential information, the attorney should first make a reasonable effort to convince the client to act suitably or to correct his or her action. The attorney may reveal the client’s confidential information to comply with other law or a court order or if the attorney seeks a legal opinion about the attorney’s compliance with the ethical rules.
Lastly, the attorney may reveal the client’s confidential information to establish a claim or defense on behalf of the attorney in a disciplinary action against the attorney, in a suit between the attorney and the client such as malpractice or a claim for fees, or if the attorney has to establish a defense to a criminal charge or civil claim against themselves resulting from the client’s conduct.
The duty of confidentiality may sometimes be confused with the attorney-client privilege. The duty of confidentiality is a broader ethical obligation while the attorney-client privilege is an evidentiary rule that confidential communications, whether in-person, by telephone, or via electronic means such as text or email, between the attorney and client and their respective representatives, made to obtain or render legal advice, and not in furtherance of a crime or fraud, cannot be compelled. If the privilege applies, the protection is absolute. But remember, communication is not considered confidential if a third party, other than the attorney’s employees, is privy to it, so if you speak to your attorney in front of another person, or if you copy someone on a correspondence to your attorney, that privilege is lost with respect to that particular communication.
So, legally and ethically two can and should keep a secret, but both parties need to know the circumstances for when that secret can no longer be a secret.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.