Tuesday, May 14, 2019

The duty of confidentiality: a broad duty with few and narrow exceptions

Don't snitch on your client. Not to the prosecutor (duh), not to the Court (in a motion to withdraw, for instance), not to probation (in discussing terms of release, for instance), not to anyone.

"The ethical requirement of confidentiality is . . . interpreted broadly, with the exceptions being few and narrowly limited." So cautioned the Kansas Supreme Court last week in an opinion disciplining a Kansas criminal-defense lawyer for breaching this sacred duty. The opinion reminds us of three important points when it comes to confidentiality:

Woman show silence sign. Vector illustration in retro pop art style. Message Shhh for stop talking and be quite. Stock Vector - 61007622
There is no waiver when it comes to the duty of confidentiality. A client may give informed consent to a disclosure, but the client's actions or statements to others cannot be said to waive the duty. Waiver "is an evidentiary matter" not relevant to the lawyer's ethical duty.

The fact that the client has given the same (or related) information to a third party does not allow the lawyer to reveal confidential communications without the client's informed consent. In other words, there is no third-person-disclosure exception to the duty of confidentiality.

The Kansas rule states that “[a] lawyer may [not must] reveal such information to the extent the lawyer reasonably believes necessary . . . [t]o prevent the client from committing a crime.” KRPC 1.6(b)(1). Three cautionary notes with respect to this exception: First, the lawyer must "reasonably believe" that the disclosure is necessary. Second, the lawyer should seek to dissuade the client from taking illegal action before resorting to the disclosure. And third, the disclosure should be no greater than necessary to prevent the commission of the crime.

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