Every so often, I’ll have someone reach out to me on our contact form or by phone and be vague about their legal situation or what they are looking for help with. Many startup owners don’t actually know what legal help they need, so this lack of detail can be understandable. However, sometimes it is out of a concern that another person (i.e., basically a complete stranger over whom they have no real control) will have knowledge of their new business, invention, or idea.
Duty of Confidentiality
First off, it’s important to understand that actual attorneys who are licensed with a state Bar almost always owe clients what is known as a duty of confidentiality. This duty prevents us attorneys from revealing any information to a third-party related to a client’s case. To put it mildly, this duty of confidentiality is a very big deal in our profession.
ER 1.6 and You, the Client
As an attorney licensed and practicing here in Arizona, this duty of confidentiality comes from the Rules of Professional Conduct adopted by our Supreme Court, which I must strictly follow (especially if I’d like to keep my license).
Under Ethical Rule (referred to as “ER”) 1.6(a), a lawyer “shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted or required by paragraphs (b), (c) or (d), or ER 3.3(a)(3).”
In plain English, I (or anyone else in the firm) must keep private information related to our representation of you, the client, unless you give your informed consent, the course of the representation necessarily requires it, or it is permitted or required by the special exceptions cited in ER 1.6.
It should also be mentioned that this holds true even if the client didn’t provide the specific information but, rather, it came from another source.
Great Expectations (of Confidentiality)
When can you actually expect this duty of confidentiality to attach? That can have some trickier scenarios than you might imagine, but the general rule is that the (technically different but closely related) attorney-client privilege only attaches when the circumstances surrounding the communication lend themselves to confidentiality.
In other words, a client who meets with me in my office to discuss their new IP, or perhaps sends an e-mail directed just to me about a potential buy-out offer, can reasonably expect any such communication to be under the duty of confidentiality.
What about Prospective Clients?
Now you may be thinking, that’s all well and good, but what if I’m not a client? Put another way, say you’re just lawyer shopping or needing some quick, first-time advice? Will what you say or reveal to a lawyer in an initial phone call or first consultation still be confidential?
In most cases, you can relax. The general rule is that even preliminary communications between a potential client and the lawyer are subject to the duty of confidentiality, as well as attorney-client privilege. We can’t disclose to anyone else what you as a prospective client reveal to us in confidence. This is true even if you never end up hiring us (or we end up declining to represent you).
Again, going back to the Rules of Professional Conduct here in Arizona, ER 1.18(b) states, “Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as would be permitted by ER 1.6 or by ER 1.9 with respect to information of a former client.”
As the Comment to ER 1.18 explains,
“It is often necessary for a prospective client to reveal information to the lawyer during an initial consultation prior to the decision about formation of a client-lawyer relationship. The lawyer often must learn such information to determine whether there is a conflict of interest with an existing client and whether the matter is one that the lawyer is willing to undertake. Paragraph (b) prohibits the lawyer from using or revealing that information, except as permitted by ER 1.6 and as permitted by ER 1.9, even if the client or lawyer decides not to proceed with the representation. The duty exists regardless of how brief the initial conference may be.”
Exceptions (there are always exceptions) to Confidentiality
As you may have noticed from the text of ER 1.6 above, the duty of confidentiality is not an absolute one–there are a few exceptions, mainly information involving the committing of a crime or fraud, or death or bodily harm to someone.
For example, under ER 1.6(b), we attorneys may reveal information a client has told us to the extent we reasonably believe is necessary to prevent a client from committing “a criminal act that the lawyer believes is likely to result in death or substantial bodily harm”. Meanwhile, under ER 1.6(c), a lawyer we may reveal the intention of the client to commit a crime and information necessary to prevent it.
In a future post, I’ll talk about the somewhat related (but frequently interchanged) “attorney-client privilege” mentioned above. The point is, if you reach out to BHANDLAW, whether by phone or e-mail, and even as just a prospective client or someone looking to receive more information, you very likely have an expectation of confidentiality and, as such, we are bound to keep our communications related to your matter completely in confidence.
Image courtesy of Nick Youngson CC BY-SA 3.0 ImageCreator
Ben Bhandhusavee is the Managing Attorney for BHANDLAW, PLLC, a Phoenix business and technology law firm working with start-up companies, creative intellectual property, Internet and digital media matters, and complex corporate M&A and technology transactions. Ben can be reached at (602) 222-5542 or by e-mail at firstname.lastname@example.org