Oklahoma Bar Journal
Ethics & Professional Responsibility | Confidentiality: The Basics
By Richard Stevens
ORPC 1.6 (a) states, “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”
EVIDENTIARY PRIVILEGE VS. ETHICS CONFIDENTIALITY
The attorney-client evidentiary privilege is so closely related to the lawyer’s ethical duty to preserve confidentiality that the two terms are often used interchangeably. The two terms, however, describe two different concepts entirely. A lawyer's duty to preserve confidentiality is extremely broad. It protects all “information relating to the representation of a client” and is always in effect. The attorney-client privilege is an evidentiary privilege that protects communications from compelled disclosure and applies in proceedings governed by the rules of evidence.
The evidentiary privilege only applies to communications made “in confidence” and not disclosed to others. Similarly, ORPC 1.9 allows a lawyer to use information relating to the representation of a former client if that information “has been disclosed to the public or to other parties adverse to the former client.” ORPC 1.6 does not contain any exception for publicly available or previously disclosed information.
Lawyers may be impliedly authorized to reveal information “in order to carry out the representation.” While the client's identity may be confidential, its disclosure would certainly be impliedly authorized in the context of litigation involving that client. Other implied authorizations may deal with facts that cannot properly be disputed or disclosures that may contribute to a satisfactory resolution of a matter. What is impliedly authorized is heavily fact dependent. Lawyers may be impliedly authorized to disclose information to other lawyers both within and outside of the law firm if the lawyer reasonably believes the disclosure will further the representation.
EXCEPTIONS TO NONDISCLOSURE
ORPC 1.6 (b) contains certain exceptions to nondisclosure. ORPC 1.6 (b) (1) allows a lawyer to disclose confidential information “to prevent reasonably certain death or substantial bodily harm.” Often, these disclosures relate to threats of harm to others by a client, but self-harm and suicidal threats by the client are also included. Information may be revealed to prevent both accidental and intentional death or substantial bodily harm.
ORPC 1.6 (b) (2) allows disclosure if a lawyer reasonably believes disclosure will prevent a client from committing either:
1) a crime; or
2) a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services.
Similarly, 1.6 (b) (3) allows the lawyer to reveal confidential information “to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services.” This section also requires the lawyer to attempt to contact the client so that the client can rectify criminal or fraudulent acts and allows a lawyer to reveal confidential information only after the client has failed or neglected to do so.
ORPC 1.6 (b) (4) allows the lawyer to reveal confidential information to secure legal advice about compliance with the Rules of Professional Conduct.
ORPC 1.6 (b) (5) allows a lawyer to reveal confidential information “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.” Most often, this exception is used in the collection of attorney’s fees. I would caution lawyers that, to my knowledge, no court has found that a “social media fight” is a controversy under this rule.
Lawyers are also allowed to reveal information “to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client[.]” “Proceeding” in this context includes disciplinary actions. ORPC 1.6 (b) (6) allows lawyers to reveal confidential information to comply with the Rules of Professional Conduct, “other law or a court order.”
Lawyers should also be aware that ORPC 1.9 and 1.18 prohibit revealing confidential information, and confidentiality survives the death of the client.
Mr. Stevens is OBA ethics counsel. Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact him at email@example.com or 405-416-7055. Ethics information is also online at www.okbar.org/ec.
Originally published in the Oklahoma Bar Journal – OBJ 95 Vol 8 (October 2023)
Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.