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Detection Of Conflict Of Interest

When is it allowed to disclose information

Attorneys in various firms can need to reveal minimal details to each other in order to identify and address conflicts of interest, such as when a lawyer is considering a case in point. In these circumstances, lawyers and law firms are permitted to disclose limited information, but only after substantive discussions on the new relationship have taken place. Such disclosure should typically include no more than the name of the individuals and organizations involved in the case, a brief overview of the general issues involved, and information about whether the matter has been brought to an end. However, even this restricted information should be revealed only to the degree fairly sufficient to identify and address conflicts of interest that can occur as a result of a potential new partnership. In addition, the disclosure of any information is prohibited if it compromises the privilege of the attorney-client or otherwise impairs the client (e.g. the fact that a corporate client is seeking advice on a corporate takeover that has not been publicly disclosed; that a person has consulted a lawyer on the possibility of a divorce before the person’s intention is known to the spouse of the person; In those circumstances, paragraph (a) prohibits disclosure unless the client or former client gives informed consent. A lawyer’s fiduciary duty to a lawyer’s firm may also govern the conduct of a lawyer when exploring the association with another firm and beyond the scope of these Rules.

Any information may be used or disclosed only to the extent necessary to detect and resolve conflicts of interest. Similarly, the disclosure of information within a law firm where disclosure is otherwise authorized,for example, where a lawyer in a firm discloses information to another lawyer in the same firm in order to detect and resolve conflicts of interest that might arise in connection with a new representation.

A lawyer may be ordered to disclose information relating to the representation of a client by a court or by another court or government entity claiming authority under another law to compel disclosure. In the absence of informed consent from the client to do otherwise, the lawyer should make a claim on behalf of the client that the order is not authorized by any other law or that the information sought is protected against disclosure by the privilege of the attorney-client or by any other applicable law. In the event of an adverse decision, the lawyer shall consult the client on the possibility of appeal. However, unless a review is required the lawyer has to comply with the order of the court.

Disclosure is permitted only to the degree that the lawyer fairly believes that disclosure is required in order to achieve one of the purposes stated. In any case, disclosure that is detrimental to the client’s interest should not be greater than the lawyer fairly finds necessary for the intent to be accomplished. If disclosure is made in connection with a judicial case, disclosure should be made in such a way as to prevent access to information by the court or other individuals who need to know it, and the lawyer should pursue reasonable security orders or other steps to the fullest extent possible.

The lawyer may consider factors such as the nature of the relationship of the lawyer with the client and with those who may have been harmed by the client, the role of the lawyer in the transaction and factors which may prolong the conduct in question.


Properly acting to maintain confidentiality

The lawyer shall act to competently safeguard information relating to the representation of a client against unauthorized access by third parties and against unauthorized or unauthorized disclosure by a lawyer or other individuals engaged in the representation of a client or subject to the supervision of a lawyer. Factors to be considered in assessing the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the material, the risk of exposure if additional safeguards are not used, the expense of using additional safeguards, the difficulty of applying the safeguards, and the degree to which the safeguards adversely affect the lawyer’s ability to retaliate (e.g., by making a device or important piece of software excessively difficult to use).

When sending a message that contains information relating to a client’s representation, the lawyer must take appropriate care to prevent the information from getting into the hands of unintended recipients. However, this obligation would not require a lawyer to take special protection precautions if the mode of communication offers a fair expectation of privacy. However, specific circumstances can warrant special precautions. A client may ask a lawyer to take special security precautions that are not allowed or may give informed consent to the use of a means of communication that would otherwise be prohibited..