Professional confidentiality and exceptions - Other exceptio...

Learning Outcomes

After reading this article, you will be able to identify and apply the main exceptions to the professional confidentiality rule beyond client consent and prevention of harm. You will understand when lawyers may disclose confidential information to defend themselves, comply with law or court orders, seek legal ethics advice, or detect conflicts, and how these exceptions are tested on the MPRE.

MPRE Syllabus

For the MPRE, you are required to understand the scope of the professional duty of confidentiality and the recognized exceptions. This article focuses on:

• The general rule of confidentiality and its ethical basis.
• Exceptions allowing disclosure to defend the lawyer or comply with law or court order.
• Disclosure to secure legal ethics advice.
• Disclosure to detect and resolve conflicts of interest.
• The limits and requirements for each exception.
• Application of these exceptions in MPRE-style 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. A client sues her lawyer for malpractice. May the lawyer reveal confidential information to defend against the claim?
   1. Yes, but only with the client's consent.
   2. Yes, to the extent reasonably necessary to defend herself.
   3. No, the duty of confidentiality is absolute.
   4. Only if ordered by a court.
2. Which of the following is a valid exception to the confidentiality rule under the Model Rules?
   1. To comply with a court order.
   2. To impress a potential client.
   3. To avoid an awkward conversation.
   4. To help a friend.
3. May a lawyer disclose confidential information to obtain legal advice about her own compliance with the ethics rules?
   1. Yes, if disclosure is reasonably necessary.
   2. No, unless the client consents.
   3. Only if the client is a lawyer.
   4. Only after the representation ends.
4. When may a lawyer reveal client information to detect and resolve conflicts of interest?
   1. Never.
   2. Only if the client is notified in writing.
   3. If the information would not prejudice the client or compromise privilege.
   4. Only after a lawsuit is filed.

Introduction

The professional duty of confidentiality is a core obligation for lawyers. It requires lawyers not to reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized, or a specific exception applies. While the general rule is strict, the Model Rules recognize several exceptions that permit—but do not require—disclosure in certain circumstances. This article explains the main "other exceptions" to the confidentiality rule, focusing on those most frequently tested on the MPRE.

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

Exceptions to the Confidentiality Rule: Overview

Most exceptions to confidentiality fall into three categories:

1. Client consent or implied authorization (not covered in this article).
2. Prevention of death, bodily harm, or financial injury (covered elsewhere).
3. Other exceptions—the focus of this article.

The "other exceptions" allow, but do not require, disclosure in specific situations where the lawyer's own interests, legal obligations, or the functioning of the legal system are at stake.

Key Term: Exception to Confidentiality
A circumstance recognized by the Model Rules in which a lawyer may, or must, reveal otherwise protected client information.

Defending the Lawyer: Controversies and Claims

A lawyer may disclose confidential information to the extent reasonably necessary to:

• Defend herself in a controversy with the client (e.g., fee dispute, malpractice claim).
• Establish a defense to a criminal charge or civil claim against the lawyer based on conduct involving the client.
• Respond to allegations in any proceeding concerning the lawyer’s representation of the client.

This exception is limited to what is necessary for the lawyer’s defense and does not allow broad disclosure.

Key Term: Self-Defense Exception
The rule permitting a lawyer to reveal confidential information as reasonably necessary to defend herself in disputes or proceedings involving the client.

Compliance with Law or Court Order

A lawyer may disclose confidential information if the lawyer reasonably believes it is necessary to comply with other law or a court order. The lawyer should assert all non-frivolous claims to protect the information, but must comply if disclosure is ultimately required.

Key Term: Court Order Exception
The exception allowing a lawyer to reveal confidential information when required by law or a court order, after asserting all available objections.

Seeking Legal Ethics Advice

A lawyer may disclose confidential information to obtain legal advice about her own compliance with the Model Rules. This is often necessary when a lawyer faces an ethical dilemma and needs guidance from another lawyer or an ethics counsel. Disclosure must be limited to what is reasonably necessary for the advice.

Key Term: Ethics Advice Exception
The exception permitting a lawyer to reveal confidential information as needed to obtain legal advice about her own ethical obligations.

Detecting and Resolving Conflicts of Interest

A lawyer may disclose limited information to detect and resolve conflicts of interest arising from changes in employment or firm composition (e.g., when a lawyer moves firms or a merger occurs). Disclosure is allowed only if it does not prejudice the client or compromise the attorney-client privilege.

Key Term: Conflict Detection Exception
The rule allowing a lawyer to disclose limited client information to detect and resolve conflicts of interest, provided privilege and client interests are not compromised.

Worked Example 1.1

A client files a malpractice suit against her lawyer, alleging negligent handling of a real estate transaction. The lawyer wants to introduce emails and documents from the representation to show she acted competently. May she do so?

Answer:
Yes. The lawyer may disclose confidential information as reasonably necessary to defend herself in the malpractice action. The self-defense exception applies, but disclosure must be limited to what is needed for the defense.

Worked Example 1.2

A court orders a lawyer to produce documents containing confidential client information. The lawyer objects, but the court overrules the objection and orders production. What must the lawyer do?

Answer:
The lawyer must comply with the court order, but only after asserting all non-frivolous claims to protect the information. The court order exception applies.

Worked Example 1.3

A lawyer is unsure whether she can represent a new client due to a possible conflict with a former client. She consults her firm’s ethics counsel and shares limited details about both clients. Is this permitted?

Answer:
Yes. The lawyer may disclose information reasonably necessary to detect and resolve conflicts of interest, as long as the information does not prejudice the client or compromise privilege.

Exam Warning

On the MPRE, do not assume that any exception to confidentiality is mandatory unless the rule clearly states so. Most exceptions are permissive, not required.

Revision Tip

When answering MPRE questions, always ask: Is the disclosure limited to what is necessary? Is there a recognized exception? If in doubt, the duty of confidentiality prevails.

Key Point Checklist

This article has covered the following key knowledge points:

• The duty of confidentiality is broad and covers all information relating to representation.
• Exceptions allow, but do not require, disclosure in specific situations.
• A lawyer may disclose information to defend herself in disputes or proceedings involving the client.
• Disclosure is permitted to comply with law or court order, after asserting all objections.
• Lawyers may seek legal ethics advice and disclose information as reasonably necessary.
• Limited disclosure is allowed to detect and resolve conflicts of interest, if privilege and client interests are protected.
• All exceptions are limited—disclosure must be no broader than necessary.

Key Terms and Concepts

• Confidentiality
• Exception to Confidentiality
• Self-Defense Exception
• Court Order Exception
• Ethics Advice Exception
• Conflict Detection Exception