Are Lawyers Bound by Confidentiality
Yes, there are exceptions to confidentiality and solicitor-client privilege. If the disclosure falls within one of these exceptions, the lawyer`s obligation to keep the information secret is no longer applicable and he or she may disclose the information to a judge or other authorities. Remember the above scenario where the client tells the lawyer that they are exaggerating their back pain in order to reach a more important settlement? You might tell your lawyer that even if you say you can`t lift more than 30 pounds, you can actually lift up to 100 pounds. Your lawyer is required to treat this fact confidentially. Lawyers may disclose confidential advance information if they reasonably attempt to collect payment for services rendered. This is justified by political reasons. If lawyers were not able to disclose such information, many would only do legal work if payment is made in advance. This would likely affect public access to justice. In addition to these more traditional political exceptions for the application of privilege, recent events remind us that privilege is not absolute at all. Thus, following the events of September 11, 2001, Congress quickly enacted the USA Patriot Act, which, among other things, granted more powers to conduct searches and monitor activities without judicial intervention.28 The USA Patriot Act led to a number of new rules and executive orders from the Bush administration, including the widely criticized rule of the Bureau of Prisons.29 This rule “empowers the Attorney General to: the [Bureau of Prisons]. The Director will monitor or review communications between inmates and lawyers to deter future actions that could result in death or serious bodily injury to persons or property.
30 All that is necessary before such surveillance can begin is a “reasonable suspicion … that a particular detainee may use the communication between the lawyer and the client to facilitate terrorist acts. 31 Although the long-term effects of this new rule are not known, it is recalled that privilege itself is not immune to the political climate in which we live. The source of the information plays no role in the obligation of confidentiality. If your lawyer has learned information about you from someone other than you, they cannot disclose the information if it is related to your claim. Solicitor-client privilege is one of the oldest privileges for confidential communication.  The U.S. Supreme Court has found that privilege by ensuring confidentiality encourages clients to make “full and open” disclosures to their lawyers, who are then better able to provide open advice and effective representation.  The obligation of confidentiality also begins before the formal establishment of a client relationship between the lawyer and the client. If you`re meeting with a lawyer for the first time, you`ll likely need to disclose a certain amount of information before you even hire them.
It`s about giving the lawyer the opportunity to see if they can take over your case or not. This information must be treated confidentially even if it relates to your particular legal claim. The obligation also applies if a formal lawyer-client relationship is never established. When it comes to perjury, lawyers have limited options, and some states require lawyers to disclose when this happens, Ballman said. Lawyers have an ethical obligation to correct court records if a client has lied, but lawyers can also ask their clients not to incriminate themselves or to invoke their rights under the Fifth Amendment. A logical consequence of solicitor-client privilege is joint defence privilege, also known as the common interest rule.  The common interest rule “serves to protect the confidentiality of communications transmitted from one party to another party where a common defence or strategy has been decided and executed by the parties and their respective counsel.”  It is also common for several lawyers from the same firm to work on a case. In this case, your communication may be disclosed to other lawyers in the firm.
This is usually allowed by state law, as lawyers in the same law firm are bound by the same standards of confidentiality. However, if you are against another lawyer who is working on your case, you should inform your lawyer of your concerns. “For lawyers, solicitor-client privilege is a fundamental concept that allows them to do their job by providing clients with the security of privacy.” Lawyers may also be in breach of their duty when defending themselves against disciplinary or judicial proceedings. A client who initiates proceedings against a lawyer effectively waives the right to confidentiality. This is justified on grounds of procedural fairness – a lawyer who is unable to disclose information about the guardian would not be able to defend against such a lawsuit. 11. A number of other situations must be distinguished. First, the lawyer cannot advise or assist a client in criminal or fraudulent conduct. See Rule 1.02(c). As mentioned in the remark of this article, there may be situations where the lawyer may need to disclose information about representation to avoid supporting a client`s criminal or fraudulent behavior, and subsection (c)(4) allows for this. A lawyer`s duty under Rule 3.03(a) not to use false or fabricated evidence is a special case of the obligation under Rule 1.02(c) to avoid assisting a client in criminal or fraudulent conduct, and subsection (c)(4) permits the disclosure of information necessary to comply with Rule 3.03(a) or (b). .
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