attorney's duty of confidentiality

An attorney’s duty of confidentiality is an ethical duty that a lawyer owes to their clients, both in the continuing process of the lawyer-client relationship, and afterward. It means, unlike the attorney-client privilege, the duty of confidentiality is in effect at all times, not just in the face of legal demands (e.g., by a court) for client information. According to this duty, lawyers must not affirmatively disclose information about a client’s representation. This representation refers to information that a client shares in confidence with a lawyer, and the information is privileged because of the attorney-client trust. But there are exceptions to this duty when the client gives informed consent, the information is in the impliedly authorized category according to Rule 1.6 of professional conduct of the ABA, or the information is “generally known.” 

First, according to the ABA, the implied authorized category includes information that a lawyer may choose to disclose if they reasonably believe as necessary to: 

  • "Prevent reasonably certain death or substantial bodily harm to; 
  • Prevent the client committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services; 
  • Prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services; 
  • Secure legal advice about the lawyer’s compliance with these Rules; 
  • Establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; 
  • Comply with other law or a court order; or 
  • Detect and resolve conflicts of interests arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client."

Second, the “generally known” exception only applies to use but not the disclosure or revelation of the former-client information, which is listed in Model Rule 1.9 of the ABA. Former-client includes a client that the lawyer represented and a client the lawyer’s present or former firm represented. Also, the  information may be taken as “generally known” if it has become:

  • "Widely recognized by members of the public in the relevant geographic area or; 
  • Widely recognized in the former client’s industry, profession, or trade. However, information is not “generally known” simply because it has been discussed in open court or is available in court records, in libraries, or in other public repositories of information. An attorney must make a reasonable effort to prevent the information from leaking unless it is within the above mentioned exceptions."

See, e.g. Nix v. Whiteside, 475 U.S. 157 (1986)

[Last updated in June of 2022 by the Wex Definitions Team