Disciplinary decisions by the Supreme Court ordering serious sanctions may hold a certain fascination. But the vast majority of lawyers, who genuinely want to comply with ethical obligations, would do better to focus on minor misconduct cases. These are the ones that provide lessons for lawyers who would never dream of lying to a judge or invading client trust funds. Private reprimand cases styled Matter of Anonymous have the real nugget. The Supreme Court apparently thinks they do, else it would not go to the trouble of writing them. There have been three of them in two recent months. That’s a lot.
One of them, issued on August 27, is a rich opinion highlighting several important aspects of the duty of confidentiality. Matter of Anonymous, 932 N.E.2d 671 (Ind. 2010). Our duty to keep client information confidential is sweeping. Rule of Professional Conduct 1.6(a). Our duty to keep former client information confidential is equally broad. Rule 1.9(c). There are exceptions common to both rules, but they don’t come into play all that often.
There is not an exception that allows us to talk about our clients in social settings. Of that, we did not need reminding. But let’s change the facts a bit, and all of a sudden it becomes pretty interesting. Lawyer and Acquaintance are acquainted—they have business connections, they have friends in common, but Lawyer doesn’t represent Acquaintance–yet. Acquaintance decides to share some sensitive and embarrassing information with Lawyer. For whatever reason, Acquaintance felt comfortable sharing the information with Lawyer. Later, Acquaintance contacts Lawyer to recommend someone to represent him in a family law matter triggered by the events to which the earlier disclosed sensitive information pertained. Lawyer refers him to another lawyer in her firm. Acquaintance hires the other firm lawyer.
We know as a general proposition that lawyers in a firm are, for the most part, treated as one lawyer. So the confidences of one lawyer’s clients are the confidences of all lawyers in the same firm. It would have to be that way, wouldn’t it? Otherwise, law firms could simply not function. Acquaintance has now become Client.
Loose lips …
Flash forward. Lawyer and friends are out for dinner, one of whom is known to be friends with Acquaintance. By this time, Acquaintance’s legal matter has concluded, but for our purposes that doesn’t matter. Lawyers have a duty to protect former client confidences to the same extent as they must protect current client confidences. At dinner Lawyer says to dining companions: “Did you hear about Acquaintance? He and his wife are getting divorced and [insert sensitive and embarrassing information here].”
This would have been an easy case if Lawyer had learned the information from Acquaintance while he was a client or from her law partner who was representing Acquaintance. Had that been the case, I suspect the Supreme Court would not have thought we needed to know about this; but even more, I doubt the Court would have viewed a private reprimand as a suitable sanction for the offense.
Post Hoc Ergo Propter Hoc
But remember, Lawyer knew the information because Acquaintance shared it with her before he became a client of Lawyer’s firm; even before Acquaintance asked Lawyer for a referral. The information would never have been confidential had Acquaintance not asked Lawyer for a referral or hired Lawyer’s firm. Lawyers may be lousy friends when they gossip about their friends to others, but that doesn’t violate the Rules of Professional Conduct.
The key question in this case was: does the act of hiring a lawyer retroactively convert the lawyer’s pre-existing knowledge about the client into confidential client information? The Supreme Court answered that question “yes,” if the information is related to the representation of the client. It pointed to the broad language of Rule 1.6(a) and explanatory Comment : the duty of confidence attaches to “all information relating to the representation, whatever its source.” Knowing, as she did, that Acquaintance had become a firm client, Lawyer was now required to treat her pre-existing knowledge about Acquaintance as confidential if it was, as here, related to the representation.
There are two additional aspects of the Court’s confidentiality analysis that bear mentioning. They are not necessarily obvious.
Sharing With Others
First, Lawyer argued that because Acquaintance had chosen to share the same information with others it was not confidential. The Court said that doesn’t change anything: “The fact that a client may choose to confide to others information relating to the representation does not waive or negate the confidentiality protections of the Rules….”
Second, Lawyer argued that the fact that Acquaintance and his spouse were getting divorced was a matter of public record. Heck, the local newspaper had even publicized that fact in its listing of recent court filings. That still doesn’t matter. First off, the especially sensitive information was not a matter of public record. But, get this: as to the filing of the divorce, because it was “information relating to the representation,” it was confidential and Lawyer had no business talking about it out of school. “[T]he Rules contain no exception allowing revelation of information relating to a representation even if a diligent researcher could unearth it through public sources.” The rest of the town were free to gossip about it, but Acquaintance’s lawyer was not.
Former Client Confidences
In a footnote, the Court highlighted an oft-overlooked aspect of the rule concerning protection of former client confidences: they, too, can never be revealed unless there is an exception that would also justify revealing confidences of a current client. Confidences of former clients can be used, but not revealed, if the information has become generally known and if its use is not to the disadvantage of the former client. At first blush, that might seem odd. But think about it. If former client information has become “generally known”—not just technically in the public sphere—every lawyer in the world, except the lawyer for the former client, could use that information as a basis for assisting other clients. Of course, the ex-client’s lawyer can use generally known former client information only in ways that are not disadvantageous to the former client. Otherwise, the lawyer will have a former-client conflict of interest under Rule 1.9(a).
Confidentiality Versus Privilege
It is important not to confuse the ethical duty of confidentiality with the attorney-client privilege, which is an evidentiary doctrine. As we have seen, the establishment of an attorney-client relationship between Acquaintance and another lawyer in Lawyer’s firm made all the difference in whether that information was confidential client information. Not so with the privilege. There was no attorney-client relationship (or even a contemplated relationship) between Acquaintance and Lawyer at the time Acquaintance revealed his sensitive information to Lawyer. That is the defining factor in defeating the privileged nature of the conversation. A later-created attorney-client relationship will not reach back and imbue earlier conversations with a privileged character. So while the lawyer is bound by confidentiality not to voluntarily reveal that earlier conversation, the client could not successfully claim attorney-client privilege if a third party sought to discover the contents of that conversation.
Raab Emison—An Appreciation
Inveterate Res Gestae columnist Raab Emison recently passed away. We lost a giant of our profession. He was a masterful writer and storyteller. He bridged the gap between an earlier, perhaps more genteel, era of law practice and the cutting edge of where our profession is heading. He rendered irrelevant the distinctions between big city and small town lawyers. He taught me that the core values of our profession are enduring values. The hackneyed words “civility” and “professionalism” took on real substance when applied to Raab.
At the very beginning of the Rules of Professional Conduct are thirteen short paragraphs of Preamble that talk about the role and function of lawyers in society. I hope you’ll take a moment to read them in Raab’s memory. It will take only a minute or two. In doing so, you will be reading an apt description of our friend Raab Emison.