An Open Memo about Confidentiality

There are a few things that I want my clients to know about confidentiality when they deal with my law firm. This post is an open memo collecting those thoughts in one place.

First, your attorney has an ethical obligation to keep your information confidential. That’s why I don’t sign many nondisclosure agreements. It’s not so much that I don’t want to be on the hook contractually for safeguarding information that is disclosed to me. Rather, my license to practice law–my very livelihood–is on the line. Most people feel like that is enough protection.

The obligation to keep client information confidential is pretty broad. Rule 4-1.6 of the Missouri Rules of Professional Conduct states that a lawyer “shall not reveal information relating to the representation of a client unless the client gives informed consent.” This goes beyond trade secrets and information generally protected under nondisclosure agreements and can include the very fact that you’ve engaged my firm to represent you.

In addition, this protection of confidentiality begins before you engage my law firm. Rule 4-1.18 provides, “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation.”

And the obligation to protect information about your representation continues after our engagement ends. Rule 4-1.9 states, “A lawyer who has formerly represented a client in a matter … shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client … ; or (2) reveal information relating to the representation ….”

In short, I’m obligated to protect your information before, during, and after our engagement.

Client communications

A client’s communications with his or her attorney are protected by attorney-client privilege. The privilege is a rule of evidence that keeps a court from forcing disclosure of attorney-client communications. It enables clients to seek advice from their attorneys without fear that the advice will be disclosed to other parties during litigation.

In order for a communication to be protected, it must be confidential, it must be between the attorney and the attorney’s client, and it must be made for the purpose of obtaining legal advice. There are some additional things you should know about the privilege:

First, in order for the attorney-client privilege to protect a communication, the communication can’t include persons other than the client and the attorney. For that reason, you might not want to cc your CPA or business broker on emails to me where you are seeking legal advice. And when I send you an email that includes legal advice, I probably won’t include in the distribution anyone who is not my client in the representation. It doesn’t necessarily mean that I don’t want to keep others informed about what’s going on, but I do want to protect your rights. Since my firm doesn’t do litigation, you probably will never need the privilege, but I do want to be careful as a matter of good practice.

Also, a nondisclosure agreement can’t create attorney-client privilege, and sharing a communication with someone else will destroy the privilege even if you have a nondisclosure agreement with them. So be careful about sharing legal advice with others.

Security of information

Comment 15 to Rule 4-1.6 discussed above states that a lawyer “must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client.” This means that my firm has an ethical obligation to take reasonable security measures to protect your information. This includes using strong passwords, two-factor authentication, and encryption where appropriate.

In addition, we should think about whether unencrypted email is a sufficiently secure form of communication. In my post Why I Don’t Use Automatic Email Disclaimers, I discuss the fact that when you send an email, it can be intercepted and read by any number of unintended readers. In fact, unencrypted emails are sometimes compared to post cards which are easily read while en route.

As an attorney, I have an ethical obligation to make sure my clients are aware of this fact. Also, I offer secure means of communication such as secure portals and email encryption.

However, most people are comfortable using unencrypted email to conduct their business affairs and prefer to do so. It’s the way they conduct their day-to-day business, and secure alternatives are less convenient. But this is your choice, and I want to make sure you can make an informed decision when dealing with my firm. Regardless, I highly recommend sharing communications and documents that contain sensitive information, such as Social Security Numbers and bank account numbers, using only secure methods.

Client confidentiality and information security are important to me as an attorney, as well a company value of Blue Maven Law. I’m sharing information about these issues in this open memo so you’ll be informed and knowledgeable.

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