IS THE INFORMATION I GIVE MY ATTORNEY CONFIDENTIAL?

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For many, their first approach with the legal system can be puzzling.  It can be difficult to know where to begin, who to reach out to, and what information can and should be shared.  Deciding whether to share information may be further complicated by concerns that the information may then be disclosed to others.  Prospective or current clients should consider an attorney’s duty of confidentiality, and any exceptions to that duty. 

Generally, an attorney’s duty of confidentiality is fundamental to the attorney-client relationship, and attorneys in California must adhere to California’s Rules of Professional Conduct.  Rule 1.6(a) provides that “a lawyer shall not reveal information protected from disclosure by Business & Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent.”  Section 6068 states that it “is the duty of an attorney to . . . maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”

For more context, these provisions can be read in conjunction with the Editor’s Note presented alongside Rule 1.6, as well as California case law.   The Editor’s Note to Rule 1.6(a) explains that “[p]reserving the confidentiality of client information contributes to the trust that is the hallmark of the lawyer-client relationship.  The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or detrimental subjects.”  Importantly, this duty of confidentiality “protects virtually everything the lawyer knows about the client’s matter regardless of the source of the information.”  Elijah W. v. Superior Ct., 216 Cal. App. 4th 140, 151 (2013).  And “[t]his obligation survives the termination of the attorney-client relationship.”  M’Guiness v. Johnson, 243 Cal. App. 4th 602, 614 (2015).

However, the duty of confidentiality is not without exceptions.  There are at least nine possible categories of exceptions to the duty of confidentiality.  First, there is an exception where the client provides informed consent.  As set out in Rule 1.01(e), “informed consent” means “a person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct.” 

Second, there may be certain disclosures required by law.  These include, but are not limited to, situations such as: (1) where an attorney is a defense counsel and required to provide the court with their opinion of the client’s competence; (2) where an attorney receives a cash transaction of more than $10,000 they are required to file IRS Form 8300 disclosing the identity of the client; (3) where an attorney pays taxes on behalf of an unnamed taxpayer; (4) where an attorney receives a State Bar subpoena requiring them to cooperate in the investigation; and (5) where an attorney is appointed counsel for a minor in custody/visitation proceedings.

Third, there may be certain disclosures impliedly authorized by the attorney-client relationship.  For example, the attorney may make certain disclosures to other members of their law firm, to joint clients, and consultants / outside contractors.

Fourth, there may be certain disclosures where a court orders the attorney to reveal certain information.  When that occurs, an attorney may be required to comply with the court order or face suspension or disbarment under California’s Business & Professions Code § 6103.  An attorney should nonetheless put forth a diligent effort to preserve the client’s confidences, including, where feasible, seeking an appeal of the court order.

Fifth, there may be certain disclosures where the attorney’s duty of candor to the court requires the attorney to speak candidly.  For example, an attorney cannot submit false evidence to a court or otherwise fail to speak truthfully to a court to preserve client confidences.   

Sixth, there may be certain disclosures where there is an obligation to reveal or produce evidence.  That limited exception flows an attorney’s obligation under California Rules of Professional Responsibility Rule 3.4 to “not suppress any evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or to produce.”

Seventh, there may be certain limited disclosures where a client sues an attorney in relation to services rendered.  For example, an attorney may disclose information in response to a criminal defendant’s claim for ineffective assistance of counsel.

Eighth, there may be certain limited disclosures where (1) the attorney seeks fees from the client, and it is necessary to reveal relevant information; (2) an attorney is wrongfully terminated and it is necessary to reveal relevant information.

Ninth, an attorney may disclose confidential information to the extent the lawyer reasonably believes it necessary to prevent a criminal act reasonably likely to result in death or substantial bodily harm to an individual. 

Ultimately, with limited exceptions, the information clients share with their attorney for purposes of obtaining legal advice is protected.  A client’s right to have confidences preserved, to the extent permitted by the law, is one of many client rights underlying an attorney’s duties under the Rules of Professional Conduct. Any individual considering legal recourse should consult a qualified attorney who can evaluate the applicable laws, relevant legal developments, and specific facts of a given case.

*** This information is provided subject to the disclaimer above and Litteral LLP’s Terms & Notices.***