Confidentiality
Lawyers owe a duty of confidentiality to their clients. Lawyers cannot ordinarily reveal confidential information to anyone, absent the client’s consent. Sometimes momma (or daddy or wife or brother or anyone else) will call the lawyer to “see what is happening” or “see what is going to happen.” Often this is simply because the family member or friend is genuinely concerned about the legal matter and what is happening or about to happen. Sometimes it is because the family member or friend is just being nosey. In either event, lawyers owe a duty to protect confidential information and cannot share that information with family or friends unless the client has specifically authorized the lawyer to do so.
What is “confidential information”?
Under the Texas Disciplinary Rules of Professional Conduct, Rule 1.05 states: Confidential information includes both privileged and unprivileged information. Privileged information is that which is protected by the Rules of Evidence and is predicated upon the principle of an attorney-client relationship. Unprivileged information means all information relating to a client or furnished by a client, other than privileged information, acquired during the course of representation of the client.
A lawyer may not reveal confidential information of a client or former client, except as provided within the rules. The rules provide for some exceptions to this general rule:
- when the client authorizes disclosure or consents,
- when disclosure is necessary to further the client’s representation,
- when the lawyer is defending against claims made by the client against the lawyer,
- to prevent a client from committing a fraudulent act,
- to comply with a lawful court order or other law,
- to rectify consequences of client’s criminal act, or
- to prove services rendered in collecting fee.
When momma calls or asks about the case or what is happening, the best course of action is for the lawyer to tell momma she represents her child and because of the attorney-client privilege she is not able to discuss the case with her. If the client insists on having the lawyer talk to momma or update momma, the lawyer should get that in writing from the client. But first, the lawyer should explain to client that the rules are there to protect the client and the lawyer can best protect the client by not divulging information to momma.
There will be legitimate reasons that a lawyer may freely talk to momma or others. For example, if momma is a witness, the lawyer can certainly interview momma about the events and circumstances surrounding what she witnessed. But in that case, the lawyer is gathering information rather than revealing information.
The bottom line is that information received from the client is protected by attorney-client privilege and the lawyer may not reveal that information (unless one of the exceptions applies). Additionally, information the lawyer learns from any other source as a result of the representation is confidential, even though it may not be privileged, and may not be revealed.