Vail Law: The importance of lawyer-client confidentiality

In law, confidentiality is sacred, or nearly so. Generally, it appears in either one of two settings: confidentiality between a lawyer and his client, and confidentiality in settlement negotiations.

Attorneys are bound by rules of professional conduct known, not surprisingly, as the Rules of Professional Conduct. Rule 1.6 deals with confidentiality of information. The Rule states:

ii) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

a) to prevent certain death or substantial bodily harm;

b) to reveal the client’s intention to commit a crime and the information necessary to prevent the crime;

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c) to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s service;

d) to prevent, mitigate or rectify substantial injury to the financial interests or property of another then is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

e) to secure legal advice about the lawyer’s compliance with the Rules of Professional Conduct, or other law or a court order;

f) to establish a claim or defense of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

g) to comply with other law or a court order.

Other than these exceptions – all of which contemplate either prosecution of the client’s interests, the prevention of a crime, or the lawyer’s own self-defense – a lawyer must keep all information provided to him by the client, strictly and absolutely confidential.

Confidentiality between a client and his lawyer has several necessary purposes. First, it promotes candid conversation between two. Second, it is essential in the attorney’s preparation of the client’s representation. If the lawyer is not apprised of both the strengths and potential weaknesses of a matter, it is difficult, if not impossible, to predict how his opponent will prepare this strategy. Candor further promotes the attorney’s ability to counsel his client to refrain from wrongdoing or conduct detrimental to his interests.

The principle of client-lawyer confidentiality is given effect by three related bodies of law: the attorney-client privilege, the work-product privilege and the rule of confidentiality established in professional ethics.

The attorney-client privilege is an evidentiary rule that protects both attorneys and their clients from being compelled to disclose confidential communications between them made for the purpose of furnishing or obtaining legal advice or assistance. Similarly, the work-product privilege protects from disclosure an attorney’s notes and other materials prepared in anticipation of litigation.

The other circumstance in which issues of confidentiality often arise is that of settlement negotiations. Commonly, the parties to a dispute will be ordered by the court to mediate the controversy before proceeding to trial. The hope is that the matter may be settled in mediation and thereby obviate the need for further litigation. Similarly, the parties may simply be interested in trying to negotiate their way out of a dispute without the investment (in time, money and emotional currency) that trial generally entails.

To promote informal resolution of disputes, Colorado Rule of Evidence, Rule 408 was enacted. The rule provides that evidence of certain matters is not admissible in court when offered to prove liability for, the invalidity of, or amount of a disputed claim. Neither may the evidence be admitted to impeach a prior inconsistent statement or contradiction. Those matters excluded from admission include offers of settlement or offers to compromise of a claim or the acceptance of either.

As in the setting of attorney-client confidentiality, Rule 408 promotes candor and cooperation. If, the thinking goes, the parties may approach each other frankly and are secure in their knowledge that offers and statements made in settlement will not be used against them, they will be more likely to fashion a workable resolution between them.

Confidentiality is one of the linchpins upon which the law is based and is essential in both the effective prosecution and resolution of disputes.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a former adjunct professor of law and may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at robbins@colorado.net