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William D King- How Can I Keep My Client Information Confidential After Us Part Ways?

William D King

That’s the law in virtually every state in the country (and federal law to boot). As a practical matter (and without getting into all of the exceptions), once you walk out of your attorney-client conference, what was at that meeting stays at that meeting says, William D King. You cannot repeat it; no one else can repeat it; except for certain limited circumstances which are beyond the scope of this article (see “Attorney-Client Privilege”), it does not get repeate under any circumstances. And if anyone attempts to make you repeat anything that was said during your attorney-client conference. Or makes you disclose any information that was to you in confidence during your attorney-client conference. Makes you disclose anything about the subject matter of your client’s case. Then they are trying to obtain a secret advantage from unfair competition with those who operate on the up and up.

And this is no idle threat-if anyone tries to make you do this. Then they have violated the law and will be held responsible for it. In fact, if anyone even asks you whether or not specific confidential communication occurred between yourself and your client as a condition of providing legal services to them (or continuing to provide legal services), then they have already committed an ethical violation which can result in their suspension from practice for a period of time.

It may sound like a lot of legal jargon, but it’s actually a fairly simple concept:

  • You cannot disclose what was discussed during your attorney-client conference without violating the law. If someone is asking for a description of your client’s case, or whether or not specific events occurred as you described them to them at your attorney-client conference–or any other question that would require you to break confidentiality–do not do it. Tell them “I am sorry; I cannot answer those questions because they would constitute a breach of attorney-client confidentiality.” And then tell them that they can call their own attorney and find out from him/her if they want to know these things explains William D King.
  • If someone does ask you about confidential information, promptly notify your state licensing authority and/or bar association. Also if you are concerned about retaliation, then explain this to them, and emphasize that confidentiality is the only way for your client to receive zealous representation.
  • If someone keeps asking you questions that would violate your client’s confidentiality (or even continues to ask you non-relevant questions after your attorney-client privilege has been clearly invoke). Then they may be engaging in legal extortion (otherwise known as “attempted aggravated harassment”). 
  • Remember: no one can make you disclose confidential information without violating the law; not even a judge; but if someone persists in asking you questions they should know will be answer with an invocation of your attorney-client privilege. They are most likely trying to obtain information they could use against you in an unfair manner.
  • If someone is trying to violate your client’s confidentiality , then the only way around the problem is for you to bring it up with your state licensing authority or bar association–and if that does not work, then immediately call a local/regional prosecutor and file charges against them for attempted aggravated harassment (or whatever the appropriate criminal charge may be). It’s not worth it; don’t let anyone do this. They will get caught at some point anyhow (they always do). So why would you want to make yourself vulnerable by allowing it?
  • “After I leave my firm to go work for a competitor. Am I legally allow to provide access to all of my files?”
  • It depends on your employment agreement. Generally attorneys are under an obligation of confidentiality with their clients after the termination of employment. Your employment agreement will dictate what obligations you have in terms of keeping information about your former employer’s clients confidential. For example, if there is no confidentiality provision in the agreement. Then you are free to contact any or all of your previous employer’s clients and offer them new representation. While retaining possession of any files that may be relevant. If the agreement indicates that such contacts would violate attorney-client privilege. Then such contacts should avoid until you clear up who owns the privilege. By transferring the files to new counsel says William D King.
  • It is also advisable to deal explicitly with the issue of confidentiality. Whenever you transfer files out of your office (either by issuance of duplicate originals or by direct delivery). This prevents any misunderstandings between you and the client. As well as providing a paper trail in case there ever is a question about who owns what after termination. In addition, you should avoid making statements to clients such as “I’ll leave everything for your new attorney”. Because this does not preserve privilege and may be misconstrued as an outright release from attorney-client privilege by a court. See An Attorney’s Obligations After Termination of Employment: Conflicts of Interest, Law Society of Upper Canada.

Conclusion:

William D King says as a matter of professional conduct and ethical obligation. It is your duty (at least in NY) to inform clients when they may speak confidentially to you. About matters that would otherwise be confidential; and if someone continues to ask you questions after an unambiguous disclosure/invocation of privilege. Then just serve them with a Cease and Desist letter. And if the warning does not stop them from persisting in their illegal behavior. Then immediately call your state licensing authority or bar association and file charges.