Professional confidentiality and exceptions - Disclosures ex...

Learning Outcomes

After reading this article, you will be able to identify when a lawyer may disclose client information based on the client’s express or implied authorization. You will distinguish between disclosures permitted by informed consent, those impliedly necessary for representation, and those limited by client instructions. You will also be able to apply these principles to MPRE-style questions and avoid common pitfalls on exam day.

MPRE Syllabus

For the MPRE, you are required to understand the rules governing a lawyer’s duty of confidentiality and the exceptions that allow disclosure of client information. This article focuses on:

• The scope of the professional duty of confidentiality under the Model Rules.
• The difference between express and implied client authorization for disclosure.
• The limits of implied authority, including client instructions to restrict disclosure.
• The permissibility of intra-firm sharing of client information.
• The relationship between confidentiality and attorney-client privilege.
• Application of these principles to practical and exam scenarios.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Under the Model Rules, a lawyer may disclose confidential client information without explicit client consent when:
   1. The client has died.
   2. The disclosure is impliedly authorized to carry out the representation.
   3. The lawyer believes it is in the client’s best interest.
   4. The information is not privileged.
2. Which of the following is true regarding intra-firm disclosure of client information?
   1. It is always prohibited unless the client consents in writing.
   2. It is generally permitted unless the client instructs otherwise.
   3. It is only allowed for billing purposes.
   4. It is never allowed.
3. If a client instructs a lawyer not to share certain information with anyone, including other lawyers in the firm, the lawyer:
   1. Must comply with the client’s instruction.
   2. May disregard the instruction if it is inconvenient.
   3. May share the information with non-lawyer staff.
   4. Must always seek court approval before sharing.
4. Which of the following best describes “implied authorization” for disclosure?
   1. The lawyer’s personal belief that disclosure is helpful.
   2. Disclosure necessary to carry out the representation, unless limited by client instructions.
   3. Any disclosure to third parties.
   4. Disclosure only after litigation has concluded.

Introduction

The duty of confidentiality is a central obligation for all lawyers. Under the Model Rules of Professional Conduct, a lawyer must not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or another specific exception applies. This article examines when disclosures are permitted because the client has expressly or impliedly authorized them, and how these rules are tested on the MPRE.

Key Term: Confidentiality
The ethical duty requiring a lawyer not to reveal information relating to the representation of a client, regardless of the source, unless an exception applies.

Express Authorization: Informed Consent

A lawyer may disclose confidential information if the client gives informed consent. Informed consent means the client agrees to the disclosure after the lawyer has explained the material risks and reasonable alternatives.

Key Term: Informed Consent
The client’s agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks and alternatives.

Implied Authorization: Carrying Out Representation

In most representations, a lawyer is impliedly authorized to make certain disclosures as necessary to carry out the client’s objectives. This includes routine communications with courts, opposing counsel, and others involved in the matter.

Key Term: Implied Authorization
Permission inferred from the client’s engagement of the lawyer, allowing disclosures reasonably necessary to carry out the representation, unless the client instructs otherwise.

Limits on Implied Authorization

Implied authority does not override specific client instructions. If a client directs the lawyer not to disclose certain information, the lawyer must comply, even if the disclosure would otherwise be routine.

Intra-Firm Disclosure

Lawyers within a firm may generally share information about a client’s matter to provide effective representation. However, if a client instructs that certain information be restricted to specific lawyers, the firm must honor that instruction.

Key Term: Intra-Firm Disclosure
The sharing of client information among lawyers and staff within a law firm for purposes of representation, subject to client-imposed limitations.

Relationship to Attorney-Client Privilege

The ethical duty of confidentiality is broader than the attorney-client privilege. Confidentiality covers all information relating to the representation, while privilege is an evidentiary rule protecting certain communications from compelled disclosure in legal proceedings.

Key Term: Attorney-Client Privilege
The legal rule that protects confidential communications between a client and lawyer made for the purpose of obtaining legal advice from compelled disclosure in legal proceedings.

Worked Example 1.1

A client hires a lawyer to negotiate a contract. The lawyer discusses terms with the opposing party’s lawyer and shares relevant information to advance the client’s interests. The client later complains that the lawyer revealed too much. The client had not given any special instructions about disclosure. Was the lawyer’s conduct proper?

Answer:
Yes. The lawyer was impliedly authorized to disclose information necessary to carry out the representation. Unless the client gives specific instructions to restrict disclosure, such routine sharing is permitted.

Worked Example 1.2

A client tells her lawyer, “I do not want anyone else in your firm to know about my case.” The lawyer believes that consulting a partner would help the client. May the lawyer discuss the case with the partner?

Answer:
No. The client’s explicit instruction overrides the lawyer’s implied authority to share information within the firm. The lawyer must comply with the client’s wishes.

Worked Example 1.3

A lawyer is preparing a court filing and must include certain facts to comply with procedural rules. The client has not objected to including these facts. Is the lawyer permitted to disclose them in the filing?

Answer:
Yes. The lawyer is impliedly authorized to make disclosures required to carry out the representation, unless the client has instructed otherwise.

Exam Warning

On the MPRE, do not confuse implied authorization with the lawyer’s personal judgment. Implied authorization is limited to disclosures necessary for representation and does not permit the lawyer to reveal information simply because the lawyer thinks it is helpful or convenient.

Revision Tip

Always check whether the client has given specific instructions about disclosure. If so, those instructions control, even if disclosure would otherwise be impliedly authorized.

Key Point Checklist

This article has covered the following key knowledge points:

• The duty of confidentiality prohibits disclosure of client information unless an exception applies.
• Express authorization requires the client’s informed consent after adequate explanation.
• Implied authorization permits disclosures necessary to carry out the representation, unless limited by client instructions.
• Lawyers may share client information within a firm unless the client restricts such sharing.
• Attorney-client privilege is narrower than the duty of confidentiality and applies only in legal proceedings.
• Client instructions always override implied authority to disclose.

Key Terms and Concepts

• Confidentiality
• Informed Consent
• Implied Authorization
• Intra-Firm Disclosure
• Attorney-Client Privilege