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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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