The Dilemma of Explaining Confidentiality
Posted By Eric Duesdieker, Nov 23, 2011
In order to best represent clients, an attorney needs to consider the most comprehensive set of relevant facts that are available. Fully understanding a client’s circumstances allows attorneys to confront “bad” facts head-on and to maximize the benefit of “good” facts. In order for an attorney to obtain the best possible understanding of the underlying facts, the client must feel comfortable communicating frankly. Accordingly, a client may filter what information they share if they fear that information they relate to their attorney will be relayed to third parties.
It is clear that the attorney-client privilege is NOT absolute. The ABA Model Rules of Professional Conduct, for example, establish that lawyers are permitted to disclose confidential attorney-client information in order to 1) prevent reasonably certain death or substantial bodily harm, 2) establish a defense when faced with a client’s suit against them, and 3) remedy perjury committed by the client (Rules 1.6, 3.3).
However, fully informing the client of all the limitations on the attorney-client privilege could significantly chill a client’s candor, undercutting the purposes of the privilege and weakening an attorney’s ability to best represent their client.
Therefore, an attorney faces a difficult choice when he or she decides how and when to discuss the scope of confidentiality with a client. Research has suggested that attorneys often do a poor job of discussing the scope of confidentiality, sometimes misrepresenting attorney-client privilege as immutable, and sometimes failing to discuss it at all!
Commentators have proposed a number of ways to address the problem, though there is no clear consensus. Some suggestions include: discussing confidentiality early in the client intake process (before asking questions); avoiding statements that suggest confidentiality is absolute; avoiding detailed explications of all situations where attorney-client privilege does not forbid disclosure; and giving a brief statement that states that there are limitations on confidentiality but placing the onus of asking about the limitations on the client.
It is important for an attorney to carefully consider his or her approach in explaining attorney-client confidentiality. The relationship between an attorney and a client is based upon mutual trust. Therefore, there is something inherently wrong when an attorney begins that relationship by failing to state, or misrepresenting, the rules that govern the relationship.
Dwelling on the limits of confidentiality will no doubt foster wariness and cause clients to be less forthcoming. However, an attorney should strive to find some balance between encouraging open discourse and informing clients of the limits of attorney-client confidentiality. Though the limitations of attorney-client confidentiality is a sensitive topic, it is essential to the formation of long-term relationships, to an attorney’s professional reputation, and to respect for the legal profession as a whole that an attempt to adequately explain confidentiality is made.
To read more about the dilemma of explaining confidentiality, see Clark D. Cunningham, How to Explain Confidentiality?, 9 Clinical L. Rev. 579 (2003).