Every lawyer knows, hopefully, that we all owe a duty of confidentiality to our clients. How broad is that duty? It’s pretty broad.
California Rules of Professional Conduct rule 1.6(a) states, “A lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent, or the disclosure is permitted by paragraph (b) of this rule.” Business and Professions Code section 6068, subdivision (e)(1) states that it is a duty of a lawyer, “To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Comments to rule 1.6(a) explain that the rule “recognizes a fundamental principle in the lawyer-client relationship, that, in the absence of the client’s informed consent, a lawyer must not reveal information protected by Business and Professions Code section 6068, subdivision (e)(1).”
“OK,” you may be thinking, “That’s great and all but what exactly is protected under section 6068(e)(1)?” Again, the comments to rule 1.6(a) are instructive. The duty applies not only to communications protected under the attorney-client or work product privileges but extends to any “information a lawyer acquires by virtue of the representation, whatever its source.”
Basically, just about anything you learn about the client or the client’s case during your representation of the client is subject to the duty of confidentiality. This is true even if the information is a matter of public record. Just because the information is in a court filing that anyone can freely access from the court’s website does not remove your duty, as the attorney, to maintain confidentiality.
Whether you’re blogging, posting to social media or just chatting with a colleague at a conference, keep in mind that the duty of confidentiality you owe to your clients is broader that you might think.
