Attorney-Client Confidentiality in Oklahoma

Under the law of attorney-client confidentiality, a lawyer may not reveal information relating to the representation of a client, prospective client, or former client. Certain exceptions apply; these exceptions include if the client has committed or is about to commit a crime, and disclosure of client confidences is necessary to protect others. If a lawyer reveals confidential client information, the bar association may discipline the lawyer, and possible take away the lawyer’s license to practice. The client may also file a civil suit against the lawyer. I will discuss the legal principles of attorney-client confidentiality below.

In my last post, I discussed attorney-client privilege. In this post, I will talk about attorney-client confidentiality. What is the difference between the two? Attorney-client privilege law says that a court or other government body may not order a lawyer to disclose confidential attorney-client information. Attorney-client confidentiality law says that a lawyer may not reveal attorney-client information; if a lawyer does so, the state bar may disciple the lawyer and even take away his license. Attorney-client privilege law is part of the law of evidence; attorney-client confidentiality law is part of the law of legal ethics.

What does attorney-client confidentiality law require?

Under attorney-client confidentiality law, it is illegal for a lawyer to reveal “information relating to the representation of a client.” A lawyer also may not reveal confidential information about a prospective client or a former client. (There is sometimes a question about who qualifies as a “client.” For example, lawyers like me, who maintain websites, often receive e-mail messages from people who reveal detailed information about their cases. Sometimes, however, when I receive this information, I already represent the opposing party. Similar incidents have happened to other attorneys as well. On the contact form on my website, I have posted the language, “Information you submit in this form is not protected by attorney-client privilege or confidentiality. Please only provide general information about the type of services you are seeking.” If you contact me, I recommend that you do not include confidential information, until you actually meet with me one-on-one.)

A lawyer must also “make reasonable efforts” to make sure that information relating to the representation of a client is not inadvertently disclosed. In addition, lawyers must ensure that their employees do not disclose confidential information. I know of firms who have fired employees who have revealed client confidences. In the digital age, the lawyer’s obligation to prevent inadvertent disclosure of client information has taken on new significance: lawyers must make their computers secure so that unauthorized users may not access client data.

You may read Oklahoma’s law on attorney-client confidentiality here.

Exceptions to attorney-client confidentiality

Almost every law has its exceptions, and attorney-client confidentiality has several.

These include:

·         The client consents to the disclosure

·         Disclosure is necessary to prevent certain death or substantial bodily harm

·         Disclosure is necessary to prevent a client from committing a crime

·         Disclosure is necessary to prevent a client from committing a fraud that will likely harm another person’s property, and the fraud is related to the lawyer’s services (this provision was added after the corporate accounting scandals – such as the Enron scandal – of the early 2000s)

·         Disclosure is necessary to prevent or correct injury that has resulted, or will likely result, from a crime or fraud that the client has committed, and the crime or fraud is related to the lawyer’s services. Before revealing such information, the lawyer must first contact the client and ask the client to rectify the wrong. The lawyer may reveal confidential client information only if the client refuses, or is unable, to rectify the wrong.

·         Disclosure is necessary for the lawyer to obtain legal advice about compliance with ethical rules

·         Disclosure is necessary for the lawyer to establish a claim or defense in a dispute with a client

·         Disclosure is necessary for a lawyer to establish a defense to a criminal or civil charge against the lawyer based on conduct in which the client was involved.

·         Disclosure is necessary for the lawyer to answer allegations in a legal proceeding relating to the lawyer’s representation of the client

·         A court has ordered the lawyer to disclose the information, and the court has held that the information is not protected by attorney-client privilege. (If a court has held that information is not protected by attorney-client privilege, the lawyer may be obligated to appeal the court’s ruling.)

Note that, under these exceptions, a lawyer may reveal information relating to the representation of a client, but a lawyer is not required to reveal such information.

There are other laws, however, which may require a lawyer to reveal confidential client information. One of the most notorious examples was the Tarasoff case. In Tarasoff, a man told his psychologist that he was planning to kill a woman, and he named the woman he planned to kill. The psychologist did not warn the woman, and two months later, the patient killed her. The victim’s family sued the psychologist and won. The court held that the psychologist had a duty to warn the woman of the impending danger. Although the psychologist argued that he had a duty of confidentiality to patients, the court held that this duty was not absolute, and that the duty to warn unsuspecting people of imminent danger outweighed the duty of confidentiality to patients. Although Tarasoff involved a psychologist, not a lawyer, psychologists have a duty of confidentiality similar to lawyers. Some courts have held that the rule in Tarasoff is analogous to lawyers.

What happens if a lawyer reveals client confidences?

If a lawyer reveals a client confidence, and the exceptions to the rule do not apply, the Oklahoma Bar Association (OBA) may impose disciplinary sanctions against the lawyer. The client first would have to file a complaint with the General Counsel of the OBA. The type of discipline that the OBA may impose includes:

Letter of Admonition. This letter is not a finding of guilt and does not actually impose discipline, but it informs the lawyer that the lawyer was “dangerously close” to violating ethical rules. The letter of admonition is confidential and is not part of the public record.

Private Reprimand. The OBA orders the lawyer to appear before the Professional Responsibility Commission and receive a reprimand. Because the reprimand is private, the OBA does not disclose that the lawyer received the reprimand; however, the OBA places the reprimand in the lawyer’s file, and the reprimand may affect future disciplinary proceedings.

Diversion Program. If the OBA refers a lawyer to the diversion program, they may order the lawyer to take instruction and receive assistance in ethical matters.

Suspension. If a lawyer is suspended, he will be unable to practice law until he is reinstated.

Disbarment. The lawyer loses his license to practice law. Generally, he will be allowed to apply for reinstatement after a certain period of time (often five years).

Civil lawsuits against the lawyer

In addition to bar discipline, a client may also sue a lawyer in civil court for violating confidentiality. The court may order the lawyer to compensate the client. This procedure is independent of the Oklahoma Bar Association’s disciplinary process.

At the Persaud Law Office, we take your privacy seriously

At the Persaud Law Office, all of our staff are trained to protect client confidences. You can be assured that we will keep sensitive information private. If you have a legal issue, please feel free to contact us today.

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