In our last post, we began speaking about the duty of confidentiality attorneys owe to their clients. At its core, confidentiality is about lawyers protecting the privacy of their clients. Under the New Jersey Disciplinary Rules of Professional Conduct, lawyers are prohibited from revealing information related to the representation if a client.
There are certain exceptions to the rules, the first of which is when the client provides consent. Another is in situations where the lawyer reveals information to the proper authorities to the extent the lawyer believes is reasonably necessary to prevent the client or another individual from committing a crime, or an illegal or fraudulent act that is likely to result in death or serious bodily harm, financial loss to another, or fraud upon a court of law. A lawyer may also reveal confidential information to an individual who is under threat, to the extent the lawyer believes is reasonably necessary to protect that person from death or serious bodily harm, financial injury, or property loss.
Other exceptions to the confidentiality rule are when the lawyer reasonably believes it is necessary to:
- Rectify the consequences of a client’s criminal, illegal or fraudulent actions where the lawyer’s services were used to further such activity;
- Establish a claim or defense in a controversy between the lawyer and the client and the client or to establish a defense in a case against the lawyer based upon matters in which the client was involved; or
- Meet the requirements of other law.
In determining whether a lawyer’s revelation of confidential information is reasonable, a court will consider use the standard of what a reasonable lawyer would have done. Those who pursue a legal malpractice claim against an attorney for breach of confidentiality may, therefore, make use of expert witnesses to establish the conduct a reasonable attorney would have engaged in with respect to the situation.
In our next post, we’ll look briefly at attorney-client privilege and how it relates to a lawyer’s duty of confidentiality, and how an experienced legal malpractice attorney can help address the matter when a client is harmed by an attorneys’ failure to abide by his or her professional duties.