Confidentiality and attorney-client privilege form the heart of the attorney-client relationship. These principles allow clients to communicate with you fully, frankly and without fear of disclosure. A breach of confidentiality can irreparably damage the relationship. It can also lead to an ethics complaint or malpractice claim.
Keep it Confidential
One of your highest ethical duties is to safeguard information and property received from clients. That means keeping it confidential. Clients have to be able to trust you, or the relationship is doomed from the start.
Everyone in the firm – from the receptionist on up – should understand the importance of maintaining client confidences. It should be a condition of continued employment. Internal procedures and rigorous oversight will ensure that what happens in the office stays in the office.
Alta Pro Practice Pointers
- Know the difference between confidentiality and privilege. Though the two terms are often used interchangeably – sometimes even by attorneys – they are not the same. Client confidentiality is your ethical obligation to keep information about the representation private. This duty is comprehensive and broad. It can even cover the fact that you are representing the client. Every state has a rule on client confidentiality, most of which mirror ABA Model Rule of Professional Conduct 1.6. The attorney-client privilege, on the other hand, is an evidentiary concept enshrined in common law. It protects lawyers in certain circumstances from being compelled to disclose information about their client. Both principles have the same fundamental purpose: to encourage the free and unfettered flow of information between attorney and client.
- Create a firm culture of confidentiality. Discuss Rule 1.6 with all new hires. Cite the rule in your Office Policy Manual. Talk about it in staff meetings. Set a good example by not discussing clients and cases outside the office.
- Obtain client permission before disclosing something about the case. Rule 1.6 allows disclosure if the client gives informed consent. Document their consent with a letter or file memo.
- Avoid inadvertent disclosures. Are case files piled in public view on the front desk? Are computer screens visible to people passing through the office? Can water-cooler conversations be heard by someone in an adjacent suite?
- Protect client data wherever it’s located. Don’t be lax. What is your policy on taking client files out of the office, discarding paperwork, and using laptops and portable devices when working at home? Take special precautions for computer files and digital data that can breached by hackers.
- Beware the “reply to all” nightmare. Everyone has unintentionally copied someone on an email or sent a text message to the wrong recipient. When such mistakes impact a client, the results can be disastrous.
- Have a policy for file retention, storage and destruction. Don’t casually toss closed files into the recycling bin or dump old bank records at the landfill. Use qualified document disposal vendors. Make sure data files and hard drives are erased and unrecoverable. Research state or local requirements for retaining and disposing of confidential files.
The Bottom Line: Show your clients that you are trustworthy by taking steps to safeguard their confidences.
Have a question about confidentiality or attorney-client privilege? Ask the Risk Pro!
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This information is intended for informative purposes for members of Alta Pro Lawyers Risk Purchasing Group. It is not intended as legal advice. Lawyers should always refer to local and state rules and statutes for applicable standards and rules. These guidelines are designed to help lawyers avoid professional liability claims and are not intended for any other purpose. No legal or fiduciary relationship is intended to be created by receipt of this material.
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