Confidentiality in Attorney-Client Relationship

Rule 1.05, Texas Disciplinary Rules of Professional Conduct, defines “confidential information” as both “privileged information” and “unprivileged client information.”  “Privileged information” refers to information learned through attorney-client communications and protected by the rules of evidence governing privilege.  “Unprivileged client information” refers to “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.”

With a definition of client confidential information this broad, a lawyer would be correct in concluding that all information about and from a client acquired during an attorney-client relationship is protected from disclosure by the lawyer and the lawyer’s firm to third parties--in the absence of legal exceptions.

1.1  Primary Exceptions

Fortunately, there are numerous exceptions within Rule 1.05 that permit disclosure of client confidential information that are necessary to carry out the client’s representation—without which the client’s objectives would be often be impossible to achieve.

For example, a client may have expressly authorized the disclosure of the client’s confidential information to carry out the representation or, in the case of unprivileged client information, the lawyer is either impliedly authorized to disclose information or has reason to believe that disclosure is necessary to the representation.  Without these broad exceptions to confidentiality (or without express client consent every time), a lawyer would be unable to routinely share a client’s confidential information with third parties, such as medical providers, expert consultants or expert witnesses, fact witnesses, and other individuals and entities necessary to carry out the representation successfully.

Further, there are exceptions to client confidentiality that protect the attorney’s ability to assert claims against a client and/or defend against claims by a client or third party relating to the client representation.  In addition, exceptions to client confidentiality arise where the client has involved the lawyer’s legal services in criminal or fraudulent acts or where the lawyer is aware of otherwise protected confidential information “clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person…”.  In this latter instance, the lawyer is obligated to “reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act.”

Finally, a lawyer may reveal client confidential information to “comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.”

1.2  Other Exceptions

The above summarizes only a few of the key exceptions to client confidentiality. Therefore, it is important to review Rule 1.05, Texas Disciplinary Rules of Professional Conduct, in its entirety when concerned about whether you may have a right or obligation to disclose a client’s confidential information.

In your review of the entire Rule, note that Rule 1.05(b) sets out the general parameters of when a lawyer “shall not knowingly” reveal a client’s confidential information while acknowledging the exceptions that follow in paragraphs (c) through (f) of the Rule.

Paragraph (c) describes when a lawyer “may reveal confidential information” (i.e., both privileged and unprivileged client information broadly) while paragraph (d) describes, narrowly, when a lawyer “may reveal unprivileged client information.”

Paragraph (e) describes the lawyer’s affirmative obligation to reveal “confidential information” (again, the broad definition) relating to a client’s likely criminal or fraudulent acts that are likely to result in death or substantial bodily harm to a person.

Paragraph (f) also describes the lawyer’s affirmative duty to disclose confidential information (broadly defined) when required to do so by:

(1) Rule 3.03(a)(2), this “Candor Toward a Tribunal” Rule states that a “lawyer shall not knowingly fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;”

(2) Rule 3.03(b), which states that “[i]f a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence.  If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts;” or

(3) Rule 4.01(b), which states that “in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person or fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client.”