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You’re sitting at your desk, minding your own business. You’re conducting yourself ethically in every possible way. For one serene moment, the practice of law is as peaceful as a pattering brook wandering down a mountain. When you speak to yourself, you use your “Deep Thoughts by Jack Handey” voice. Everything is coming together. Everything is calm. The only thing that could change the balance you have achieved in the practice of law is for someone else to . . .
There is a knock on the door. For the sake of this story, let’s say it’s the FBI. Or the IRS or the State Police. Maybe it’s someone serving a subpoena. Maybe it’s the fictional attorney who likes to make face-to-face visits instead of sending out nasty emails. (Wait, who are we kidding?) No matter who it is, the person is a zen-destroyer because he only wants one thing: to ask you about your client.
Here are three things to know when a third party requests information about your client.
1. Don’t be cooperative, civil or otherwise charming. You’re a lawyer. You’re a good person. You try to get along. Clients compliment you on your ability to “bridge the divide” or get to the “solution” in a case. So while the Zen-Destroyer is standing in your doorway with his demands for information, you may instinctually say “OK. How can I help you?” Don’t follow that instinct. This is one of the few times in the practice of law when it is better to get the answer from a law book than it is to follow your gut (That said, if your instinct calls for you to obstruct, be discourteous and act like a brick wall, follow that instinct. You’re going to like what we are about to say next).
Rule 1.6 of the Indiana Rules of Professional Conduct says that unless you have client consent, you have a duty to resist. For example, Comment [13] to Rule 1.6 of the Indiana Rules of Professional Conduct says:
“A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court’s order.”
Id. cmt. 13 (emphasis added).
Secondary legal authorities also demonstrate the lawyer’s duty to resist disclosure. For example, the Restatement of the Law Governing Lawyers holds that a lawyer may disclose confidential information when required by law, but only “after the lawyer takes reasonably appropriate steps to assert that the information is privileged or otherwise protected against disclosure.” Restatement (Third) of the Law Governing Lawyers § 63 (1998).
2. Confidentiality relates to more than privileged communications. While you’re making the Zen-Destroyer comfortable on your office couch and pouring him coffee, you may feel the urge to talk “a smidge” about your client’s case. After all, not everything is a privileged communication, right?
Well, everything may not be privileged, but everything is likely confidential. Rule 1.6 of the Indiana Rule of Professional Conduct is broad. It provides:
“A lawyer shall not reveal information relating to 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).” (Emphasis added).
What could you possibly talk about that does not “relat[e] to the representation of a client?”
If you think we are reading this too broadly, look at the comment to Rule 1.6. It explains: “A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.” Id. cmt. 2 (emphasis added). The comment also states that the “confidentiality rule … applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” Id. cmt. 3 (emphasis added).
3. Make sure you have cover. Rule 1.6 lists several instances when confidential information can be shared. Informed consent of the client is one of those instances. Under Rule 1.4 of the Rules of Professional Conduct, if at all possible, you should be sharing the request for information with your client. If your client gives informed consent, then you have cover. If not, you may need to seek guidance from a court to make sure you are in compliance with your ethical obligations.
Make sure that you have cover and make sure that cover is documented. After all, as we said above, you’re a lawyer. You’re a good person. Don’t make a Zen-Destroyer’s request for information your problem.•
James Bell is an attorney with Paganelli Law Group, and Jessica Whelan is an attorney with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. Bell is a regular speaker on criminal defense and ethics topics. He can be reached at [email protected] and Whelan can be reached at [email protected]. The opinions expressed are those of the authors.
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