The other day, I indulged in the guilty pleasure of binge-watching one of those lawyer-themed television dramas. A recurring plot theme for all the episodes in one season focused on the murders of several well-known attorneys in a large city. Each of the attorneys was targeted by a disgruntled client with a grudge. The partners of the fictional law firm in the show faced a not-so-fictional dilemma when some of their own members were targeted in several episodes. They had to decide if the circumstances permitted them to give the police the names of their clients to rule out as suspects. The fictional attorneys were adamant that they were ethically bound to keep the names of their clients confidential, which of course added to the drama on the show and led to some interesting plot twists. The answer in real life is a bit more complex: maybe.
Every lawyer knows the basic rule that any information that pertains to the representation of a client should be kept confidential and safeguarded by the lawyer and her staff. Not only is this a common-sense rule that helps our clients trust that we will handle their matters with discretion, but also allows us to be their trusted advocates to whom they can give full disclosure of all the information that we need to properly represent their interests. This is, of course, more than just common sense. It is also an ethical obligation that has been codified in most states’ professional conduct rules, including in New York since 2009, based on the ABA’s Model Rules of Professional Conduct. New York’s Profession Rule of Conduct 1.6 (the “Confidentiality Rule”) states:
CONFIDENTIALITY OF INFORMATION
(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:
(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
(3) the disclosure is permitted by paragraph (b).
“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.
(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime;
(3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
(4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or
(ii) to establish or collect a fee; or
(6) when permitted or required under these Rules or to comply with other law or court order.
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Confidential information, as it is defined by the Confidentiality Rule, encompasses most information that a client provides to an attorney and that the attorney learns about the client, regardless of the source. The Rule applies to both current and former clients. See New York Rule of Professional Conduct 1.9(c)(2). This may, in some circumstances, include the client’s name if a client wishes this to remain confidential. The rule also, however, has a list of expressly stated permissive exceptions. Now, I am by no means an ethics expert, but the long list of exceptions, some of which defer to the reasonable discretion of the lawyer, suggests that there may be circumstances under which it would be consistent with the Confidentiality Rule to reveal the name of a client, even if the client has instructed the lawyer not to do so. Two of the exceptions that stand out allow disclosure of information “to prevent reasonably certain death or substantial bodily harm” and “to prevent the client from committing a crime.” Another that stands out is the one that allows disclosure if another law or a court permits or requires disclosure.
The Confidentiality Rule, however, does not require a lawyer to disclose information under any circumstances, but rather gives guidance on when a lawyer might be permitted to do so ethically. So, if a lawyer, in his or her reasonable discretion, decides that it is better not to disclose information, that lawyer also complies with the Rule. Also, the comments to the New York Rule note that even when faced with a court order or advised that disclosure is compelled by some other law, a lawyer has a duty to make a good-faith argument why the order is invalid or the law is inapplicable and take the necessary legal steps to protect their client. Of course, if after being fully informed on the matter, the client says it is okay to disclose the information in question, the lawyer is free to comply with the request to disclose.
The Rule also limits the permitted disclosure only to that which is reasonably necessary, for example, to prevent a client from murdering another attorney, like the decision that the fictional attorneys in the binge-watched television show faced. So, what should those lawyers have done? Again, there is no one correct answer. On the television show, one of the partners is shot by an unidentified gunman in the elevator bank of the firm. Of course, the police want to question all the firm’s clients since this shooting follows a string of lawyer murders by enraged ex-clients. The plot is thickened by the fact that another of the firm’s partners had already been threatened before the shooting. If the police had the names of the firm’s clients, they could investigate and question them as likely suspects, thus possibly preventing further violence. Under these circumstances, there might be a reasonable basis to provide some information to the police, even if that information included the names of clients who wanted to keep the fact of their representation by the firm confidential. But, how much information would be reasonably necessary to weed out an unidentified gunman to prevent them from shooting another partner or lawyer at the firm? To further complicate the dilemma, the police could also use any information they found out about the firm’s clients to question or harass them on other unrelated criminal matters — yup, this happened on the show.
The attorneys in the show chose not to disclose, sparking a conflict between partners and more drama when the information was leaked. In the real world, it might be permissible for the firm to provide only the names of the clients of the partner who was shot and the one who was threatened. That might be enough for law enforcement to continue their investigation and find the actual perpetrator. The firm probably should not provide any more information, such as detailed contact information or information about matters it handled for these clients, nor should it actively assist in the investigation, except to provide information about the actual shooting and threats. For example, if there was a camera in the elevator bank, then the video of the shooting should probably be provided to law enforcement. Video footage of the entire day, or days preceding the shooting, however, might be too much and risk exposure of client information, like the fact that they met with counsel on a certain date and time. Of course, before doing anything, the firm is also permitted by the Confidentiality Rule and should absolutely seek legal advice about how to best and ethically comply with the Rule and assist law enforcement.
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What would you do? The first thing I would do is call the Bar Association’s Ethics Hotline.
Christine A. Rodriguez is of counsel to the firm Balestriere Fariello and successfully represents individuals and small businesses in all manner of employment discrimination, civil rights, criminal defense, civil litigation and commercial litigation matters. She also advises small businesses on all aspects of legal matters from contract to employee issues. You can reach her by email at christine. a. rodriguez@balestrierefariello. com.