I can’t believe I’m doing this as neither of these people deserve any benefit of the doubt or serious treatment afforded for their contentions. But, based on spending time on the web reading comments (despite the always-spot-on advice “don’t read the comments”), there are so incredibly many people who do not understand these concepts and, thus, yesterday’s events do present a good teachable moment about privilege and confidentiality.
Lesson the 1st – it can never be said too many times that the concept of, and the scope of, attorney-client privilege and the ethical duty of client confidentiality are different. Attorney-client privilege is an evidentiary concept and a privilege with respect to testimony and compelled production of communications in connection with litigation. Client confidentiality is an ethical duty that imposes shackles on lawyers with respect to voluntary disclosure of information about clients or information about the representation of clients. If you are familiar with Venn diagrams, then you can think of attorney-client privilege as a smaller circle within the much larger circle that is confidential client information under Model Rule 1.6 and its state analogs. Client confidentiality is also different because while it imposes real restrictions on attorneys voluntarily disclosing information, it can fall to a court order requiring disclosure. (See, for example, Model Rule 1.6(b)(6)).
Lesson the 2nd – both privilege and confidentiality will adhere to communications between an attorney and a prospective client during conversations or written communications while deciding whether or not to form a relationship. Under the ethics rules, most states have adopted a specific rule to drive this point home patterned after Model Rule 1.18. New York’s version of that rule reads, in pertinent part, as follows:
(a) Except as provided in Rule 1.18(e), a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.
Lesson the 3rd – the identity of a client, though rarely a piece of information that is itself privileged, is always confidential information under the ethics rules.
Lesson the 4th – if a prospective client communicates with an attorney in order to see if they might want to form an attorney-client relationship, those communications should not involve the actual giving of legal advice to the prospective client. If they do, then the person is not a prospective client anymore because they have now become your client even if only for a limited time period. If a person asks you for legal advice, and you have given them the legal advice they asked for, then they are your client. (A much more pedestrian way this can be a problem for lawyers is along these lines: A lawyer who decides not to take on a plaintiff’s case because the lawyer has concluded that the statute of limitations on the claim has run and the lawyer tells the plaintiff that conclusion. The lawyer turns out to be wrong about that conclusion, but the plaintiff relies on the advice, later realizes that it was wrong, and then sues the lawyer for malpractice. Lawyer is going to be unable to defend the malpractice claim on the basis that they were not the plaintiff’s lawyer because they gave the plaintiff legal advice.)
Lesson the 5th – you don’t have to pay a lawyer any money at all to be a client. Communications can be protected by the attorney-client privilege without respect to whether any money ever changes hands. And, most certainly, client confidentiality adheres without regard to payment to the lawyer.
(NB: Here endeth the legal ethics lessons. These two bonus lessons are not about legal ethics.)
Lesson the 6th – there is no point in discussing journalistic ethics when talking about Client Number Three. He ain’t a journalist.
Lesson the 7th – if a lawyer with only two clients takes on a third client and the common subject-matter of representation of the other two clients involves facilitating hush money payments regarding sexual improprieties, you don’t have to be Sherlock Holmes to begin to think you know the kind of services the third client was seeking.