The Duty of Confidentiality
Study Questions on IV.B.1 in the Syllabus.
There is a good deal of variation in the professional duty of confidentiality from state to state and between the Model Rules and the Model Code. In addition the differences between the Model Rules and the Model Code are heavily tested on the MPRE. As a result, when discussing the professional duty of confidentiality, we will look to the Model Rules, Model Code and the Virginia Rules of Professional Conduct.
1. Notice first of all that the scope of the duty of confidentiality is broader than the attorney-client privilege. It applies to information, not merely communications. In addition, it applies to information gained in a wide variety of circumstances, not merely information gained through confidential communication with the client. But the Model Rules and the Model Code differ on the information to which the duty of confidentiality applies. Here are some examples spelling the differences out:
a) A friend of a lawyer tells the lawyer at a dinner party that X has a shoplifting conviction. The friend does not know that the lawyer represents X in connection with a subsequent shoplifting arrest. Is this confidential information under the Model Rules? Under the Model Code and the Virginia Rules?
b) While investigating a client’s defense in a drunk driving case, the lawyer discovers that the client is considering a divorce. Is this confidential information under the Model Rules? Under the Model Code and the Virginia Rules?
c) A lawyer learns from a client, whom he is representing in a negligent driving case, that, although the client must wear glasses when driving, his prescription is very weak. At a cocktail party the lawyer tells a number of friends about the client’s prescription, as an example of how strict the rules for wearing glasses while driving really are. Is this confidential information under the Model Rules? Under the Model Code and the Virginia Rules?
d) What if the lawyer merely mentions at the cocktail party that someone he knows has such a prescription?
2. Under both the Model Rules and the Model Code, disclosures of confidential information that are impliedly authorized in order to carry out the representation are allowed. Does this exception allow a lawyer to reveal confidential information to another lawyer (who is not a member of his firm) in order to get the other lawyer’s informal legal opinion about the case?
3. The duty of confidentiality also applies to the use of confidential information by the lawyer in addition to its communication to others. Here too the Model Rules and the Model Code sometimes differ. Consider the following scenarios:
a) A lawyer is processing a patent application for a corporation. The information he gains from the client leads him to believe that the patent is very valuable. The lawyer therefore buys 100 shares of the corporation’s stock, which is traded publicly, without telling the client. The share price of the corporation goes up. Is this in violation of The Model Rules? The Model Code and Virginia Rules? Are there any other legal issues concerning the lawyer’s conduct?
b) A lawyer helps a client draw up the documents for purchasing a plot of land upon which the client is going to build a gas station. The lawyer figures that once the gas station is build, the land next to it will be prime real estate for a fast food restaurant. After the client buys the property and the lawyer-client relationship is terminated, but before the gas station is built, the lawyer buys the land next to the client’s. The fast-food restaurant he subsequently builds on the property is a big success. Is this in violation of The Model Rules? The Model Code? The Virginia Rules?