ILNews

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. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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