May 10, 2007
Confidentialty vs. Privilege
A case decided today by the D.C. Court of Appeals provides an excellent teaching example of the distinction between the duty of confidentiality and the attorney-client privilege. The case provides guidance to an attorney faced with an attempt to compel disclosure of arguably privileged information relating to the representation of a former client.
Attorney Koenick represented a client who claimed she had been fraudulently deceived in the sale of her real property. The defendants sought dismissal on statute of limitations grounds, claiming the plaintiff had been aware of the basis for suit as early as August 1999. The factual support for this contention was a demand letter sent by Koenick dated August 16, 1999. Defendants sought Koenick's deposition. He appeared but declined to answer questions, invoking the privilege and Rule 1.6.
On appeal, the court approved the attorney's ethical approach of invoking privilege, declining to answer and appealing the order of the trial judge to disclose. The court holds (quite correctly) that an attorney must (not "may" as Rule 1.6 provides) answer questions when required by law or court order. After making "every reasonable effort" to test the issue through appeal, the lawyer must disclose otherwise confidential information that is not protected by the privilege. Here, the topics that the defendants sought to explore did not relate to communications between Koenick and the client and were not privileged. Because the exact date that Koenick received his client's information was not intended to be confidential, such information also must be disclosed. (Mike Frisch)
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