Personal Injury Law

Inadvertant Disclosures - Part II - The lawyer's obligation

By Steve Lombardi

What is the lawyer's obligation with respect to information that is protected under the attorney-client privilege?

The lawyer's obligation is to not disclose the information unless waived by the client or compelled by a Court or the rules of ethics. Iowa Code 622.10. The duties of attorneys and counselors is "To maintain inviolate the confidence, and, at any peril to the attorney or counselor, to preserve the secret of a client." Iowa Code 602.10112.
Need I say more?

The Model Rules of Professional Conduct cover the attorney-client privilege and confidentiality of information at Rule 16.

[2] 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. See Rule 1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.

[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope.

[4] Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.
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Former Client
[18] The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.

How with electronic communications is the attorney-client privilege breached?

As we can certain see, even an inadvertent disclosure can at best lead to embarrassment for the client and at worse criminal charges. Electronic communications take place by any number of methods and any one of them can lead to an inadvertent disclosure. Wireless communication is an easy way to communicate an inadvertent disclosure. Cell phones and cordless phones are a commonly used form of wireless communication. Others include wireless computers, pda's, earpieces, Blackberry technology, smart cards, headsets, handheld speech devices, wireless networking, DVD players, CDVD players and iPods are the most commonly used devices for wireless communications. Any time information is transmitted via a wireless technology the attorney-client privilege may and can be breached.

A wireless access points (WAP or AP) is a device connecting wireless devices that then forms a wireless network. Wireless networks can connect to a server. Don't fool yourself into believing that all wireless devices are small and can fit neatly into your pocket. The large server in your law office can be a wireless device. Generically referred to as Wi-Fi's it simply means you don't need to be plugged into an outlet to access an information source or network of communication devices.

What has kept most of us feeling safe is ignorance. And for the most part we have been safe because there are few parties who care to go to the trouble and expense to intercept wireless communications. As the information being transmitted becomes more valuable; then the parties willing to go to the expense and risk of gathering those wireless communications naturally increase.

When wireless technology first flourished it was in what they called analog format. Analog transmissions include television and radio broadcasts. We can probably all remember our next door neighbor's cordless phone signal being picked up by your cordless phone. The next generation of wireless communications was formatted as digital. This mode of transmission transfers voice or text data by first converting it into a binary code, then transmitting the binary information into it's original format. Digital transmission can deliver a signal, free of ghosts, interference, and picture noise. It provides sharper, clearer and faster transmission, using less bandwidth to transmit more information than analog. ( www.phonearena.com ) Analog is much easier to inadvertent transmit and disclosures more common than with a binary exchange.

Any time you transmit information on an unsecured network or through digital documents there is the possibility of disclosing information that is otherwise covered by the attorney-client privilege. Let's discuss three common technologies and three of the most common methods of electronic communications lawyers use.

Full post as published by Des Moines Personal Injury Lawyer on April 07, 2008 (boomark / email).