Q: Are lawyers required to keep secret the information learned during the attorney-client relationship?
A: Generally, yes. The Supreme Court of Ohio recently stated: “A fundamental principle in the attorney-client relationship is that the attorney shall maintain the confidentiality of any information learned during the attorney-client relationship.” Three separate, but overlapping, rules protect information that clients give to their lawyers within the lawyer-client relationship.
1) “Confidentiality” – Under the rules of legal ethics, lawyers generally cannot voluntarily reveal information relating to the representation of their clients without their clients’ express or implied consent.
2) “Attorney-Client Privilege” – Under the rules governing the introduction of evidence in court, lawyers generally cannot be compelled to reveal communications with their clients. However, the attorney-client-privilege applies only when clients communicate confidentially with their lawyers in order to obtain legal service.
3) “Work Product” – Under the rules of civil and criminal procedure, lawyers generally cannot be compelled to reveal written material that was created while working on their clients’ behalf to prepare a case for trial. When lawyers do legal research, take notes of witness interviews, or meet with other lawyers to develop strategies, the written material is called “work-product” and it is protected from disclosure by rules of both criminal and civil procedure.
The rules of legal ethics prevent lawyers from volunteering what they know; the rules on introducing evidence in court prevent lawyers from being compelled to tell what was discussed with their clients, and the rules of court procedure prevent lawyers from being compelled to reveal written information created for litigation.
Q: Is information transmitted by electronic means protected by these secrecy rules?
A: Yes. Lawyers and clients may exchange confidential information by email, fax transmissions, cellular phones, cordless phones, text messaging, video conferencing, and other electronic means. Generally, lawyers may communicate with clients by email without encryption or other safety measures. But enhanced security measures may be required for any form of electronic communication transmitting exceptionally sensitive information.
Q: Can a business organization, as well as a natural person, be a client?
A: Yes. The rules requiring lawyers to maintain confidentiality of their clients’ information apply to both natural persons and to entity clients such as corporations, partnerships, and unincorporated associations.
Q: Why are lawyers required to keep secret information relating to the representation of their clients?
A: The primary reason is to encourage clients to provide their lawyers with all possible pertinent information—including possibly embarrassing or damaging information—that may be relevant to their legal problem. Full communication allows lawyers to determine what is or is not relevant to their clients’ case. The confidentiality rule protects clients from being penalized for consulting with lawyers and telling their lawyers as much as possible about the matter.
Q: Can clients keep facts secret by telling these facts to their lawyers and then relying on the attorney-client privilege to prevent discovery of the facts?
A: No. The attorney-client privilege protects only communications, not facts. Clients cannot hide facts by telling them to their lawyers. What is privileged is the content of the communications between the clients and their lawyers. What clients say or write to their lawyers is privileged. The facts about what clients knew, did, or failed to do are not privileged.
Q: Are there exceptions to the three “secrecy rules”?
A: Yes, and the exceptions are detailed and complex. Here is a summary of some of the most important exceptions.
Ohio lawyers may volunteer information relating to the representation of their clients when the clients give “informed” consent or the disclosure is impliedly authorized in order to carry out the representation. In addition, lawyers may volunteer information relating to the representation of their clients if lawyers reasonably believe it necessary to: (1) prevent reasonably certain death or substantial bodily harm; (2) prevent their clients or others from committing a crime; (3) mitigate substantial injury to financial or property interests resulting from their clients’ commission of illegal or fraudulent acts for which their clients have used their lawyers’ services; (4) obtain legal advice about their own compliance with the lawyer disciplinary rules; (5) claim or defend in controversies between lawyers and their clients, defend against criminal or civil claims based on conduct in which their clients were involved, or respond to allegations in proceedings concerning the lawyers’ representation of their clients; and (6) comply with other law or court orders.
In Ohio, there are three basic exceptions to the attorney-client privilege that permit lawyers to disclose information when it is compelled by judicial process. (1) The Crime-Fraud exception applies when clients have used their lawyers’ services to commit a crime or fraud. (2) The Testamentary exception applies in Ohio when competing claimants are asserting claims through a deceased client and the dispute addresses their deceased client’s competency, or whether their deceased client was the victim of fraud, undue influence, or duress. (3) In Ohio, lawyers may testify by the express consent of their clients, or, if the client is deceased, by the expressed consent of the surviving spouse or the executor or administrator of the deceased client’s estate. There is no requirement that the surviving spouse, executor, or administrator must make the same decision about waiver that the decedent would have made.
Under the common law there are four major ways in which clients may be deemed to waive the attorney-client privilege. (1) Waiver by disclosure – revealing privileged documents or privileged communications. (2) Waiver by failure to object – when a lawyer fails to object to a question that calls for privileged information. (3) Waiver by attacking their lawyer’s work – clients who sue their lawyers or former lawyers for malpractice waive the attorney-client privilege for communications relevant to the malpractice action. (4) Waiver by putting the advice of counsel in issue – lawyers may reveal their communications with their clients when their clients’ defense against criminal charges is that they relied on their lawyer’s advice that the conduct was lawful.
Sometimes the opposing party may obtain parts of a lawyer’s work-product if that party has “substantial need” of the materials and is unable to obtain the information in any other way.
Q: Are there instances when lawyers are required to reveal their clients’ secrets?
A: Yes. In Ohio there are two general rules and one rule specifically related to representing business organizations that require lawyers to disclose information relating to the representation of their clients.
1) Lawyers have duties of candor to the courts. If the lawyer, the client, or a witness for the client has offered false evidence and the lawyer later learns of its falsity, the lawyer must take “reasonable measures” to remedy the situation, including, if necessary, disclosure to the court. In addition, lawyers in adjudicative proceedings must take “reasonable measures” to remedy the situation, including, if necessary, disclosure to the court, when they know that their clients or other persons intend to engage, are engaging, or have engaged in criminal or fraudulent conduct relating to the proceeding.
2) Lawyers must be truthful in statements to others. When representing clients, lawyers must disclose material facts when disclosure is necessary for lawyers to avoid assisting their client’s illegal or fraudulent acts.
3) A recent Ohio rule provides that lawyers for organizations are to proceed as is necessary in the best interests of their client organizations when the lawyer knows or reasonably should know that an owner, officer, director, trustee, or employee of the organization is acting, intends to act, or refuses to act in a manner that is (1) a violation of a legal obligation to the organization, or (2) a violation of law that reasonably might be imputed to the organization and is likely to result in substantial injury to the organization. More specifically, if it is necessary to enable organizational clients to address the matter in a timely and appropriate manner, lawyers must refer the matter to higher authority within the organization, including the highest authority that can act on behalf of the organization.
This rule only requires lawyers to report within the organization, i.e., report up the ladder. It does not require or permit lawyers to report outside the organization, i.e., report out. Nevertheless, one of the two general rules requiring disclosure of information may still require lawyers to disclose information outside the organization.
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by W. Lance Tibbles, a professor of law at Capital University Law School in Columbus.