Legal Definitions - attorney's duty of confidentiality

The attorney's duty of confidentiality is a fundamental ethical obligation that lawyers owe to their clients. It requires a lawyer to protect and keep private all information related to a client's representation, regardless of whether that information was shared directly by the client or discovered by the lawyer during their work.

This duty is broader than the attorney-client privilege because it applies at all times and in all contexts, not just when facing a legal demand for information (like a subpoena). It begins the moment a potential client shares confidential information and continues indefinitely, even after the lawyer-client relationship has ended.

Generally, a lawyer must not voluntarily disclose any confidential client information. However, there are specific, limited situations where a lawyer may be permitted or even required to reveal such information:

• When the client gives informed consent for the disclosure.
• When the disclosure is impliedly authorized to carry out the representation (e.g., sharing details with a co-counsel or expert necessary for the case).
• To prevent reasonably certain death or substantial bodily harm.
• To prevent a client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another, especially if the client used the lawyer's services for that purpose.
• To mitigate or rectify substantial injury to financial interests or property that has resulted from a client's crime or fraud where the lawyer's services were used.
• To comply with a court order or other law.
• To defend the lawyer against accusations of wrongdoing by the client, or to establish a claim or defense in a dispute between the lawyer and the client.
• To seek legal advice about the lawyer's own compliance with ethical rules.
• To detect and resolve conflicts of interest when a lawyer changes firms or a firm's structure changes, provided the disclosure would not compromise the attorney-client privilege or otherwise prejudice the client.

An additional, very narrow exception applies to the use (but not disclosure) of information about a former client if that information has become "generally known." This means it is widely recognized by the public in the relevant geographic area or within the former client's industry. However, information is not considered "generally known" simply because it has been discussed in open court or is available in public records.

Examples:

• General Duty of Confidentiality: Ms. Anya hires an attorney, Mr. Ben, to draft her will and estate plan. During their discussions, Ms. Anya confides in Mr. Ben that she has a secret, estranged child whom she does not wish to include in her will, a fact unknown to her current family. Mr. Ben is bound by the duty of confidentiality and cannot reveal the existence of this child to anyone, including his own family, other clients, or even Ms. Anya's other family members, unless Ms. Anya explicitly gives him permission to do so. This information, though personal and sensitive, is related to her legal representation and must be kept private.

• Exception - Preventing Harm: A client, Mr. Carlos, is being represented by Ms. Diana in a civil dispute. During a private meeting, Mr. Carlos becomes extremely agitated and tells Ms. Diana that he intends to physically assault the opposing party after the next court hearing. Ms. Diana's duty of confidentiality is paramount, but this statement triggers an exception. Because Mr. Carlos has expressed a clear intention to commit an act that is reasonably certain to result in substantial bodily harm, Ms. Diana would be permitted, and in many jurisdictions required, to disclose this information to the authorities or the potential victim to prevent the harm, even though it was shared in confidence.

• Exception - Defending the Lawyer: Mr. Evan, a former client, files a formal complaint with the state bar association against his previous attorney, Ms. Fiona. Mr. Evan alleges that Ms. Fiona committed professional malpractice by failing to properly investigate a key aspect of his case, which led to an unfavorable outcome. Normally, Ms. Fiona could not discuss the details of Mr. Evan's case due to confidentiality. However, to defend herself against these serious allegations, Ms. Fiona is permitted to reveal confidential information to the bar association that is necessary to explain her actions and establish her defense, demonstrating that she acted competently and ethically.