11.01. Introduction

The last topic introduced two confidentiality doctrines – the attorney-client privilege and the work product doctrine. Both of those dealt with the ability of a lawyer to defend a request to compel disclosure of certain information either as a matter of evidence or as a matter of procedure. The ethical rule addressing confidentiality, the subject of this topic, regulates a lawyer’s ability to disclose confidential information – voluntarily or compelled. The ethical obligation under Rule 1.6 is much broader and protects any information, whether it falls within the attorney-client privilege or the work product doctrines, so long as it “relates to representation.”  Here is how the Comment to Rule 1.6 defines the difference between these various doctrines of confidentiality:

The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics.  The attorney-client privilege and work product doctrine applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.  The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.  The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.  A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.[1]

While the duty to maintain client confidences is broad, there are a number of exceptions that allow a lawyer to reveal certain information that would otherwise be protected. These are controversial. If maintaining an atmosphere where a client feels comfortable revealing embarrassing or even incriminating information is crucial to the attorney-client relationship, why do we have any exceptions to the duty of confidentiality? You will see that the exceptions have actually increased as events, such as the Enron and WorldCom debacles, pressured the ABA (and states) to adopt expanded disclosure rights.

[1] ABA Rule 1.6, Comment [3].