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Bell/Gaerte: 3 things to know about confidentiality

James J. Bell , K. Michael Gaerte
December 18, 2013
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Bell Gaerte 3 thingsOver the past several years, attorneys and their staff have gained access to the world of social media. Through social media, those who work in the legal profession are able to communicate quickly and easily to a large audience. However, easy access to social media should be accompanied by ethical caution. While social media has not mandated the creation of new ethical guidelines, it does make it easier to commit an ethical foul. Of course, one of the easiest ways for lawyers and their staff to violate the Indiana Rules of Professional Conduct is by revealing too much information in social media.

With that, here are three things to know about confidentiality:

1. The duty of confidentiality is broad.

While some lawyers may equate the duty of confidentiality with the attorney-client privilege, the duty of confidentiality goes far beyond privileged communications with a client. In fact, arguably, the rule covers anything that pertains to a client’s case. Rule 1.6 of the Indiana Rules of Professional Conduct states that “[a] lawyer shall not reveal information relating to representation of a client” and the Supreme Court of Indiana has noted that the confidentiality “protection provided is broad.” Matter of Anonymous, 932 N.E.2d 671, 674 (Ind. 2010). 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.” Ind. Prof. Cond. R. 1.6, cmt. [3].

In the Matter of Anonymous, an attorney argued to the Supreme Court that she had not revealed confidential information due to the fact that the prospective client had disclosed the same information in question to her co-workers. However, the Supreme Court disagreed and stated that “the fact that a client may choose to confide to others information relating to a representation does not waive or negate confidentiality protections of the Rules.” Anonymous, 932 N.E. 2d at 674.

In addition, the attorney attempted to argue that she had not revealed confidential information because that information could be discovered through a search of public records. The court again disagreed and concluded that “the Rules contain no exception allowing revelation of information relating to a representation even if a diligent researcher could unearth it through public sources.” Id.

2. With regard to confidentiality, prospective clients are clients.

For purposes of confidentiality, an attorney should treat prospective clients the same as the attorney would treat plain old clients. “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation.” Prof. Cond. R. 1.18(b).

This raises a question as to who is a “prospective client?” Rule 1.18 of the Indiana Rules of Professional Conduct states that a “person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.” However, “a person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a ‘prospective client’ within the meaning of paragraph (a).” Prof. Cond. R. 1.18, cmt. [2].

Therefore, when an individual wishes to discuss the possible formation of a client-lawyer relationship, that person is a prospective client and is entitled to these discussions being kept confidential. With regard to firm websites, if clients are first communicating with you by clicking on your email address from your webpage, you should consider having appropriate disclaimers in place to dissuade those prospective clients from sharing confidential information with you until you believe an attorney-client relationship is a possibility. This practice could also help avoid issues with conflicts of interest.

3. Train staff regarding confidentiality.

Finally, we need to educate those who we supervise regarding the breadth of confidentiality. For example, Rule 5.3(a) of the Indiana Rules of Professional Conduct states that lawyers with managerial authority “shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that [a non-lawyer assistant’s] conduct is compatible with the professional obligations of the lawyer.” A similar rule exists for lawyers who we supervise.

If a co-worker tweets, blogs or otherwise reveals information related to a case, that person’s supervisor may not have violated Rule 1.6, but may have violated the rules pertaining to supervision. Therefore, you may want to consider starting off next year with a quick, but well-documented, meeting with your staff to discuss the duty of confidentiality and other ethical obligations of the firm.•

__________

James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.
 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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