Confidentiality of Information Involving Attorney-Client Relationships

Lawyers are governed by ethical rules and standards which are set forth in the Massachusetts Rules of Professional Conduct (“Rules”), as well as in substantive and procedural law. One of the Rules prohibits a lawyer from revealing “confidential information” relating to the representation of a client.

“Confidential Information” consists of information gained during or relating to a client relationship, whatever its source, that is (1) protected by the attorney-client privilege (which is generally defined as communications in confidence of matters that are (or a client reasonably supposes to be) necessary to the proper conduct of legal business); (2) likely to be embarrassing or detrimental to a client if disclosed; or (3) information that the lawyer has agreed to keep confidential. “Confidential Information” does not, however, ordinarily include a lawyer’s legal knowledge or legal research; or information that is generally known in the local community or in the trade, field or profession to which the information relates. It is important to note that even if information is publicly available, it may still be deemed “Confidential Information” if it is not generally known in the local community. As an example provided in a comment to the applicable Rule, if a client disclosed to an attorney a criminal conviction in another state that occurred a long time ago, the information would be protected, even if it was a matter of public record, if such information was not “generally known in the local community.”

There are circumstances, however, when a lawyer may reveal “Confidential Information.” Such circumstances include situations where: (1) the client provides “informed consent” (a term defined in the Rules); or (2) the disclosure is impliedly authorized in order for the lawyer to represent the client. Additionally, “Confidential Information” may be revealed to the extent that a lawyer reasonably believes it is necessary to make such disclosure: (1) to prevent reasonably certain death or substantial bodily harm, or to prevent the wrongful execution or incarceration of another; (2) to prevent the commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in substantial injury to property, financial or other significant interests of another; (3) to prevent, mitigate or rectify substantial injury to property, financial or other significant interest of another that is reasonably certain to result or have resulted from the client’s commission of a crime or fraud in furtherance of which the client used the lawyer’s services; (4) for the lawyer to seek legal advice concerning the lawyer’s compliance with the Rules; (5) for the lawyer to establish a claim or defense regarding a dispute between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the client was involved, or to respond to an allegation in any proceeding concerning the lawyer’s representation of the client; (6) as may be otherwise permitted by the Rules, or to comply with other law or a court order; or (7) to detect and resolve certain conflicts of interest.

There are many nuances involving the Rule concerning a lawyer’s obligation not to reveal “Confidential Information” in the course of his or her representation of clients. As noted above, one important exception to the Rule is when disclosure is “impliedly authorized” in order to represent a client. One way a client can avoid such “impliedly authorized” disclosure is for the client to specifically instruct the lawyer not to disclose certain information and obtain the lawyer’s agreement to keep the information confidential.

While the purpose of the attorney-client privilege is “to encourage full and frank communication between attorneys and their clients,” as noted above, “Confidential Information” is broader than information protected by the attorney-client privilege, and there are many exceptions to the general Rule that “Confidential Information” may not be revealed by the lawyer. If a client wants to make sure information provided to a lawyer remains confidential, subject to applicable exceptions, the client should obtain the lawyer’s agreement to keep the disclosed information confidential. This could avoid any interpretation of the Rules that may otherwise deem the information non-confidential.