Lawyers’ rules of ethics, known as the Rules of Professional Conduct in Indiana, require that lawyers keep the confidences of their clients. These rules are extremely broad and generally prohibit the lawyer from disclosing any information in the lawyer’s possession relating to the lawyer’s representation of a client unless the disclosure is made with the client’s consent, impliedly authorized by the nature of the representation, or permitted in certain narrow circumstances, such as to prevent a crime, to comply with a court order, to establish a claim or defense in a dispute between the lawyer and client or to help the lawyer obtain ethics advice. As a result, in the absence of express or implied permission from the client, a lawyer may not reveal the identity of a client, public information about the client, financial information or billing information about the client, or any other information the client has revealed to the lawyer in the course of the representation, outside of the narrow exceptions mentioned above. The same rule applies to information the lawyer has acquired from sources other than the client, if it is related to the lawyer’s representation of the client.
Some examples are helpful. If a lawyer is told by a friend that Client A’s factory just burned down the lawyer could not pass that information on to a third party if the lawyer was currently representing Client A in a divorce proceeding in which A’s assets were an issue. The information would relate to the representation because A’s factory would be part of A’s marital estate. But if the representation concerned A’s attempt to assert a claim for personal injury damages arising out of an auto accident in another state the information would appear unrelated to the out-of-state auto-accident litigation, and could be revealed. As these examples illustrate, the question is not whether the information is private, but whether it relates to the representation.
Of course, lawyers are permitted to disclose information they obtain on behalf of a client if it serves the client’s interest for the lawyer to do so. This exception allows a lawyer to tell his client’s side of the case in court, or in written argument, even though the lawyer got that information from the client. It allows lawyers to share information about clients with other members of the same law firm in order to get the maximum benefit from the firm’s collective knowledge and abilities. It allows lawyers to use information obtained from a client to negotiate for the client’s benefit in a dispute or a transaction.
One of the most common mistakes clients make regarding confidential information is the assumption that confidentiality rules are the same as the rules of evidentiary privilege, which protect certain confidential information from being disclosed in legal proceedings. The rules are actually quite different from one another. According to standard rules of privilege, a neither a lawyer nor client may be compelled to testify in court about the communications they have had with one another. And clients often presume that this rule will protect any discussion with a lawyer which the client perceives as “private”. So, it is not unusual for clients to show up for a meeting with a lawyer with a parent, uncle, friend or colleague in tow. Unfortunately, while the information gained from discussions in the presence of the client and the third party are subject to the ethics rules which prohibit disclosure, there is an exception in the rules of privilege which restricts protection from disclosure to the communications between the client and the lawyer (or others in the lawyer’s firm) alone. The presence of the third party will prevent the privilege from applying and the client or the lawyer may be compelled to testify about the communications between the lawyer and the client.
The existence of these rules often leads to some awkward situations for clients and lawyers, in situation in which normal behavior would involve the sharing of information. But for lawyers the rule of confidentiality is a core concept of their profession, that protects clients and prospective clients alike.