When Your Lawyer Quits: Protecting Confidential Information
This post is part of an ongoing series about the obligations lawyers have when terminating (quitting) representation of a client. To start from the original post, click here (the post will open in a new window).
EVEN AFTER TERMINATING THE ATTORNEY-CLIENT RELATIONSHIP, A LAWYER MUST MAINTAIN THE CONFIDENTIALITY OF THE CLIENT’S CONFIDENTIAL INFORMATION
It’s probably logical that a lawyer must protect the client’s confidential (and secret) information during the attorney-client relationship.
However, an attorney’s duty of confidentiality continues even after termination of the attorney-client relationship. For almost a century, it’s been the rule that “the attorney’s lips are forever sealed . . . notwithstanding his subsequent discharge.” (Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 571, 15 P2d 505, 508) The comment to California Rule of Professional Conduct 1.9 explains that the purpose of this duty is “to preserve a client’s trust in the lawyer and to encourage the client’s candor in communications with the lawyer.”
Moreover, there is no absolute statute of limitations on the duty of confidentiality. In fact, cases have held that it even continues after a (former) client’s death. There are exceptions, of course. For example, a lawyer can make disclosures when authorized to do so in writing by a (current or former) client.
WHAT CLIENT INFORMATION IS PROTECTED AS CONFIDENTIAL?
California law does not specifically define which client information qualifies as “secret” or “provided in confidence.” However, other laws and court precedents do provide some guidance:
A lawyer has a duty to protect and maintain the client’s “confidence,” which means a lawyer cannot violate the client’s trust. Courts have held that this includes (1) a duty to protect and maintain the confidentiality of all information and communications covered by the attorney-client privilege, (2) a duty not to communicate or share confidential information and facts the lawyer learns in the course of representing the client, and (3) a duty to protect and preserve the client’s secrets.
In this context, a “secret” includes all information that:
- a client has asked the lawyer to keep secret
- would be embarrassing or harmful to the client (or the client’s case) if disclosed
regardless of the source from which the lawyer learned the information and whether or not the information was identified as a secret, or confidential, at the time of disclosure.
For purposes of the lawyer’s duty of confidentiality, “confidential” information also includes information that, if disclosed, reasonably could enable the recipient to discover or learn about the client’s confidential (or secret/embarrassing) information. In that sense, the lawyer’s duty of nondisclosure, and duty to protect information, is very broad–and lawyers need to take special care to ensure they comply with this duty both during and after the end of the attorney-client relationship.
Lawyers have other ongoing obligations too.
If you believe a lawyer failed to comply with his or her legal duties after your attorney-client relationship ended (or did not represent you professionally and properly while (s)he was acting as your legal counsel), contact an experienced lawyer immediately for an evaluation of your legal rights.
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Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON.
Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.
You may lose or compromise your rights if you delay in consulting legal counsel. Most legal claims (and defenses), as well as legal and court procedures, are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other legal claim, consult an experienced lawyer immediately for an evaluation of your individual rights and claims.
