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4 Attorneys often confuse the ethical concept of the duty of confidentiality and the evidence concept of the attorney-client privilege. It is not at all unusual to hear attorneys talk of information being "privileged" when the information might b e protected by the duty of confidentiality but is in no way protected by the attorney-client privilege. Sometimes lawyers are simply misusing the word "privilege," but understand the difference between the two concepts. Other times, however, attorneys are, as one of my students recently phrased her own understanding, "a little fuzzy on that." So let's clear up some of that fuzziness! As a general matter, both the duty of confidentiality and the attorney-client privilege encourage clients to trust their lawyers. The attorney-client privilege, especially, encourages clients to tell their lawyers everything, though the duty of confidentiality does this as well. With complete information, lawyers can provide the best and most appropriate advice. The duty of confidentiality places ethical restrictions on a lawyer's disclosure of information relating to the representation of the client. Supreme Court Rule (SCR) 3.130(1.6) sets forth the parameters of the duty. In contrast, the evidentiary principle of the attorney-client privilege is a creature of Rule 503 of the Kentucky Rules of Evidence (KRE). That rule generally states that the privilege applies to confidential communications between an attorney and a client, or their respective representatives, made for the purpose of obtaining or rendering legal services and not in furtherance of a crime or fraud. Rule 503 states that if the privilege applies to a communication, disclosure of that communication cannot be compelled. While the attorney-client privilege is a creature of Rule 503, in other jurisdictions and as a matter of federal law, it is often a creature of the common law, defined by judicial opinion without the benefit of a rule. 1 While the concepts are similar, they are not the same. A lawyer may have a duty of confidentiality with regard to information about his or her representation of a client, but because the information is not a part of a confidential communication, it does not benefit from the protection of the privilege. A court could compel the client or the l awyer to disclose that information. THE DUTY OF CONFIDENTIALITY The Basic Rule: SCR 3.130(1.6) Rule 3.130 contains the Rules of Professional Conduct that govern the conduct of lawyers practicing law in Ken- tucky. Rule 3.130(1.6) deals with a lawyer's duty of confidentiality. The rule's basic statement regarding confidentiality is as follows: (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). This duty has broad application. A lawyer who represents a client in a divorce matter and who discovers information about the client's relationship with the client's wife while talking to the client's neighbor has a duty to keep that information confidential. This general confidentiality principal continues after the representation ends and applies to information received about prospective clients as well. 2 The duty of confidentiality not only forbids revealing information, but also proscribes a lawyer's use of confidential information about a client to the disadvantage of that client. 3 With regard to former or prospec- tive clients, a lawyer may not use confiden- tial information to the disadvantage of a former or prospective client unless that in- formation has become "generally known." 4 Disclosure "Impliedly Authorized" or with In- formed Consent Of course, a client may give informed consent to a disclosure of otherwise confi- dential information. Informed consent requires that the lawyer explain to the client the risks that accompany such a disclosure as well as the alternative to such a disclosure. 5 In addition, the rule allows disclosures that are "impliedly authorized in order to carry out the representation." A client who is represented by a lawyer who practices in a firm with other lawyers, absent contrary indication, impliedly authorizes the lawyer to share confidential information with other lawyers in the firm. 6 Other Permitted or Required Disclosures: SCR 3.130(1.6(b)) Rule 3.130(1.6(b)) identifies four situations in which a lawyer may disclose confidential information even though the client does not consent to the disclosure and does not authorize it. A lawyer may reveal information: 1. to prevent reasonably certain death or substantial bodily harm; 2. to obtain ethics advice; 3. to establish a claim or defense on behalf of the lawyer; and 4. to comply with other law or a court order. With regard to each exception, a lawyer may disclose only the information reasonably necessary to meet the underlying purpose. 7 To Prevent Reasonably Certain Death • or Substantial Bodily Harm Rule 3.130(1.6(b)(1)) allows a lawyer to disclose confidential information "to the extent the lawyer reasonably believes necessary" to avoid "reasonably certain death or substantial bodily harm." If, for example, a lawyer, in the course of representing a client in a child custody matter, learns from a third party that his client has expressed an intent to drown her children in the river, that lawyer may disclose such information to the authorities. To Obtain Ethics Advice • In order to encourage lawyers to consult B&B; • 1.15 F E AT U R E : E T H I C S THE DUTY OF CONFIDENTIALITY AND THE ATTORNEY-CLIENT PRIVILEGE: SORTING OUT THE CONCEPTS By: Grace M. Giesel