The Ethical Duty of Confidentiality (MPRE)

The ethical duty of confidentially is similar though not identical to the attorney/client privilege. Both the privilege and the duty are tested on the MPRE and there are some significant differences.

The ethical duty of confidentiality applies in every context in which the attorney/client privilege applies. The key here to remember, though, is that it also applies in many situations in which the privilege does not apply. In general, an attorney must not reveal any information relating to the representation with a client unless the client has provided informed consent. 

Though, of, course, there are exceptions.

Know the following exceptions to the duty of confidentiality well; they are sure to be tested.

(1):  The attorney may disclose or use confidential information if the client gives informed consent or if the attorney has the implied authority from the client.

(2):  The attorney may disclose confidential information to the extent necessary to protect the attorney against a claim of malpractice, disciplinary violation, complicity with the client in an illegal act, etc.

(3):  The attorney may disclose confidential information if necessary to obtain legal ethics advice.

(4):  The attorney may disclose confidential information to the extent the attorney is required to do so by law or court order.

(5):  The attorney may disclose a client's confidential information to the extent that the attorney reasonably deems it necessary to prevent reasonably certain death or substantial bodily harm.

(6):  The attorney may disclose confidential information to the extent necessary to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial financial harm to someone, if the client is using or has used the attorney's services in committing that fraud. The attorney may also disclose if the client has already acted and the disclosure can prevent or mitigate the harm. 

(7):  The attorney may disclose confidential information to detect or resolve conflicts of interest when the attorney changes firms or when law firms merge or when a law practice is purchased. There are limits to this one, though. The disclosure may be made only after substantive discussions regarding the relationship have occurred, and the disclosure must be limited to the minimum necessary to detect any conflicts of interest. Further, the disclosed information must not compromise the attorney/client privilege or otherwise prejudice the client, and the disclosed information may be used only to the extent necessary to detect and resolve a conflict of interest. 

One last thing I thought important to note about all 7 of the exceptions above. They all contain the word "may" rather than the word "must." Even the exception to protect the life of another is discretionary rather than mandatory. In other words, although disclosure is allowed in all of these exceptions, it is not required.