The Risk Manager, Fall 2017

A: CONFIDENTIALITY!

Lawyers for their own purposes sometimes reveal a client’s name in marketing programs, as references for prospective clients, and in articles or presentations. This raises the ethics question whether this violates Kentucky Rule of Professional Conduct 1.6, Confidentiality of Information.

The only Kentucky authority we found on the issue of revealing client names is KBA Ethics Opinion E-253 (9/81). That opinion was issued following now superseded ethics rules and is of little value. The opinion showed concern for keeping client names confidential, but did permit their release under certain circumstances. Since that time many states have moved to much stricter guidance than E-253. Wisconsin’s recent Formal Ethics Opinion EF-17-02 (4/4/17) offers what we think is the best risk management advice for protecting client names. What follows are the key points of the opinion edited to conform to Kentucky’s professional responsibility rules:

• The ethical duty of confidentiality protects all information relating to the representation of the client, whatever its source, including the identity of the client.
• Rule 1.6 prohibits the disclosure of an identity unless the client gives informed consent to the disclosure, the disclosure is impliedly authorized in order to carry out representation, or the disclosure falls within certain stated exceptions in the Rule.
• Rule 1.6 operates automatically and protects information even if the client has not requested that the information be held in confidence or does not consider it confidential.
• Rule 1.6 protects information irrespective of whether that information is privileged, or if the lawyer believes that disclosure would be “harmless.”
  • Do not confuse the ethics duty of confidentiality with the lawyer-client privilege, a rule of evidence, or discovery procedures, rules of civil procedure. These rules do not control what information a lawyer may ethically reveal under the rules of professional conduct.
• Rule 1.6 protects information that is known to others or may be available from public sources.
• This duty of confidentiality extends to information relating to the representation of former clients as well by virtue of Rule 1.9(c)(2), that prohibits lawyers from revealing information relating to the representation of former clients except as permitted or required by the Rules.
• The duty of confidentiality continues beyond the death of the client.

The best risk management is to always obtain client consent to use the client’s name when it is to be used it for the lawyer’s own purposes and is not related to the client’s representation.