'Trust Me to Tell Your Story': Should Lawyers Be More Honest about the Breadth of Their Implied Authority to Reveal Client Confidences?

Abstract

There is a disconnect between our rhetoric about the lawyer's duty of confidentiality and the realities of law practice. Legal ethics texts uniformly teach law students that their confidentiality obligations are near-absolute; all client information is protected from disclosure to third parties, with only rare exceptions. Legal interviewing and counseling texts follow suit by teaching a ritual conversation in which the lawyer, at the outset of the lawyer-client relationship, solemnly assures the client that he or she may confide completely in the lawyer because the lawyer is duty-bound to hold everything the client says in utter confidence.

And yet, this image of the confidential consultation is misleading, particularly in the civil context. For starters, except in matters where a client seeks only legal advice, the lawyer probably has no intention of keeping confidential everything she learns about the client's matter. In the vast majority of cases, the lawyer could not accomplish the client's objectives if she did so. The duty of confidentiality has broad exceptions, including particularly the allowance of disclosures that are "impliedly authorized in order to carry out the representation." Such "impliedly authorized" disclosures, which were permitted under agency law long before the creation of ethics codes, are at the same time the most-invoked and least-discussed exceptions to the duty of confidentiality. In civil matters, the lawyer is allowed to make a wide range of disclosures for the client's benefit. And the lawyer may be required to make substantial disclosures that are adverse to the client but required by court rules, discovery rules, evidentiary rules, and so on.

What's more, in most matters, the client neither expects nor desires the lawyer to maintain strict confidentiality. To be sure, the client may tell the lawyer some things that the client wants held strictly confidential. The bottom line, however, is that the client generally expects the lawyer to tell his story, not to keep it secret.

This article argues that lawyers perform a disservice to themselves and to their clients by pretending that they divulge confidential client information only under extraordinary circumstances. The duty of confidentiality is properly understood not as a strict requirement that lawyers keep all of a client's information secret, but rather as a requirement that lawyers disclose information carefully, only as necessary, and in consultation with the client. Proper performance of that duty requires regular communication and a relationship of trust between lawyer and client. Lawyers' explanation of confidentiality in civil matters should be revised to convey a more realistic understanding of the balance between storytelling and secret-keeping.

Keywords: confidentiality, attorney-client privilege, lawyer-client relationship, implied authority, legal ethics