A basic principle in the relationship between the client and the lawyer is that, in the absence of informed consent from the client, the lawyer must not disclose the representation details. This ensure the confidence that is the cornerstone of the client-law partnership. In doing so, the client is advised to obtain legal advice and to consult thoroughly and honestly with the counsel as well as with an embarrassing or legally harmful subject matter. The lawyer needs this information to serve the client adequately and, if possible, to advise the client to refrain from misconduct. Almost without exception, clients come to lawyers to decide their rights and what is perceived to be lawful and correct in the complex of laws and regulations. On the basis of practice, lawyers recognize that virtually all clients obey the advice given and that the law is upheld.
The concept of confidentiality of the attorney-client is enforced by similar legal entities: the right of the client-lawyer, the doctrine of the work product and the rule of confidentiality defined in professional ethics. The rule of confidentiality of the client-lawyer shall apply in cases other than those where proof is sought by the lawyer by force of law. For example, the confidentiality rule applies not only to matters shared in confidence by the client, but also to all information relating to the representation, whatever its source. Such details may not be revealed by a lawyer except as allowed or necessary by the Rules of Professional Conduct or any other statute.
Disclosure ban also extends to statements made by a lawyer which do not in themselves disclose confidential information but which may fairly have contributed to the detection of such information by a third party. The use of a hypothetical lawyer to address matters relating to representation is acceptable as long as there is no fair possibility that the listener will be able to determine the identity of the client or the situation involved.
Except to the degree that the client’s orders or unique circumstances restrict that authority, the lawyer is implicitly allowed to make disclosures regarding the client, where necessary, in the conduct of the representation. In certain cases, for example, a lawyer might be implicitly allowed to admit a fact that cannot be adequately contested or to make a disclosure that enables a satisfactory conclusion of the matter. Lawyers in a firm can, in the course of the practice of the firm, reveal to each other details relating to the client of the firm, unless the client has ordered that the particular information is limited to specific lawyers.
While the public interest is typically better served by a strict rule requiring lawyers to uphold confidentiality with regard to the representation of their clients, the confidentiality rule is subject to limited exceptions: overriding importance of life and physical integrity and permits disclosure which is reasonably necessary to avoid a reasonably certain death or serious bodily harm. Such harm is fairly likely to occur if it is imminent or if there is a present and serious danger that a person will suffer such harm at a later date if the lawyer fails to take the appropriate steps to remove the threat.
The rule of confidentiality requires a lawyer to reveal information to the degree required to prevent a client from committing a crime or fraud, which is fairly likely to result in significant harm to the financial or property interests of another person and to the interests of others. The client can, of course, avoid such disclosure by refraining from wrongdoing.
The confidentiality requirements of a lawyer do not prohibit a lawyer from receiving confidential legal advice on the personal duty of a lawyer to comply with these Laws. In certain cases, disclosure of information for the purpose of receiving such advice would be implicitly approved by the lawyer to make representations.
Where a legal claim or disciplinary allegation claims a lawyer’s involvement in the actions of a client or other wrongdoing by a lawyer involving the client’s representation, the lawyer can reply to the degree that the lawyer reasonably finds it appropriate to create a defense. The same applies to an argument concerning the actions or representation of a former client. Such an allegation may arise in a civil, criminal, administrative or other case and may be based on a misdemeanor allegedly committed by a lawyer against a client or on a misdemeanor alleged by a third party, such as a person who claims to have been defrauded by a lawyer and a client acting together. The right of the lawyer to respond occurs when an accusation of such complicity has been made.