Maintaining client confidentiality is a cornerstone of practicing law, and it is also essential to preserving trust and maintaining professionalism. Unfortunately, many lawyers forget or are not aware of the breadth of their duty.

This article provides some tips to mitigate risk and keep client duties top of mind.

A broad scope for clients

Lawyers are to protect all information relating to the representation of a client, regardless of the source. This includes not only communications that are lawyer-client privileged, but also information that would be embarrassing or detrimental to the client, as well as information that the client wants to keep private. These are often referred to as “confidences and secrets.”

It is important to recognize, however, that confidentiality standards arguably differ by state. For example, Alaska, California, and Oregon use “confidences and secrets” to define “information related to the representation.” In contrast, Washington interprets “information related to the representation” broadly in that it “includes, but is not necessarily limited to, confidences and secrets.” Wash. RPC 1.6 cmt. 21.

Additionally, lawyers should obtain client permission before discussing a case outside of the lawyer’s implied scope of authority. For example, no state in the Pacific Northwest has an exception to client confidentiality for marketing or client development purposes. See, e.g., Oregon Formal Opinion No. 2024-204. Even a client’s name and associated information can warrant protection. Id.

Lawyers may talk in terms of hypotheticals, but even anonymized scenarios must be carefully scrutinized to avoid inadvertently identifying a client or a case. Unless there is “no reasonable likelihood” that a reader will be able to identify the client or the matter, then the hypothetical is not sufficiently anonymized. Wash. RPC 1.6 cmt. 4.

Obligations to former clients

Even after a lawyer-client relationship ends, lawyers have a duty to protect the confidentiality of former clients under RPC 1.9. In fact, just because something was disclosed in a public record or filed in court does not mean that the duty of confidentiality is waived or even dissipates at all. However, commonly under RPC 1.9(c), information that is “generally known,” which is a legal term of art, is subject to weaker protection.

For more information on former client obligations, lawyers should review RPC 1.9 in the jurisdictions in which they practice, as well as ABA Formal Opinion 479.

Duties to prospective clients

Even when there is a prospective consultation that does not result in a lawyer-client relationship, the lawyer is required to maintain the confidentiality of the information received during the consultation, subject to the requirements of the particular jurisdiction. See generally RPC 1.18.  And the receipt of confidential information during consultation can result in a conflict for the lawyer and their law firm.

Therefore, at the outset—before taking any confidential information from a prospective client—run a conflict check. Only after completing a conflict check and clearing conflicts should a lawyer ask a prospective client for confidential information. If you speak to the potential client before clearing conflicts, take reasonable measures to limit the information you receive to reduce the risk of disqualification later.

Some Practical Tips for Reduced Risk

Staying ahead of legal-ethics pitfalls requires foresight and maintaining good practice hygiene. Here are a few practical tips that lawyers can use to reduce risk:

1. Err on the Side of Non-Disclosure

Prioritize client discretion, and assume that they would not want you to make the disclosure. Without express consent, preferably obtained in writing, avoid sharing identifiable information that could jeopardize confidentiality.

2. Avoid Prospective Disqualification

When you next receive a call about a new matter, insist that the prospective client (even if they are an existing client on another matter) provide you only with the full legal names of the involved parties, and the least amount of information needed to understand what type of case it is generally (e.g., a car accident, divorce, criminal charge, etc.). Then run a conflict search. If you have no conflicts, then you are free to have a confidential consultation with the prospective client.

3. Take the Initiative, Training Colleagues and Staff

Regularly train staff, colleagues, and associates about the applicable Rules of Professional Conduct, as well as your firm’s confidentiality policies. Clear procedures on new matter intake can eliminate variance and reduce ethical risks. Review and update conflict-checking systems when appropriate, as well as screening mechanisms if your jurisdiction permits screening to avoid imputed disqualification.

By keeping client confidentiality top of mind, diligent lawyers can uphold the ethical principles of the profession, protect client information, and mitigate the risk of conflicts and inappropriate disclosure.

This article summarizes aspects of the law and does not constitute legal advice. It is not intended to suggest or establish a standard of care applicable to lawyers in any given situation. Rather, the hope is to provide practice tips for practicing in a manner that is well above the standard of care established by substantive law. For legal advice with regard to your situation, you should contact a lawyer.