Resource Page: Confidentiality – Exceptions & Preservation

Informal Opinion 2022-07

QUESTION: Attorney’s Administrative Assistant sent an email to Client at the direction of the Attorney that contained a letter regarding an upcoming meeting with Client. Administrative Assistant accidentally sent the email to the incorrect email address. Recipient contacted Attorney regarding receipt of the information. Upon learning of this error, what responsibilities does Attorney have under the Rules of Professional Conduct?

ANSWER: Attorney should first assess the nature of the letter as to what confidential information it contained other than the name of the client and the upcoming meeting. See Informal Opinions 2015-09 and 2015-02. Attorney is responsible for the conduct of Administrative Assistant since the email was sent at the direction of Attorney, so Attorney must take reasonable remedial action to mitigate the consequences to Client pursuant to Rule 4-5.3(c)(2). Attorney should disclose to Client the breach of confidential information to the extent reasonably necessary such that Client may make informed decisions regarding the representation. See Rule 4-1.4; Informal Opinions 2020-26, 2019-06, and 2017-02. Depending on the contents of the letter, Attorney must consider if there are other obligations under applicable state or federal law pursuant to Rule 4-1.6(c), Comments [15] and [16].

Informal Opinion 2022-04

QUESTION: Attorney wants to apply for a job, and the job posting asks for a writing sample. Is it permissible for Attorney to simply submit a copy of a recently filed Motion for Summary Judgment as a writing sample with the job application?

ANSWER: Attorney must fully consider confidentiality of client information pursuant to Rule 4-1.6 when considering whether to use a writing sample that is from the representation of a client. Even if the Motion for Summary Judgment is a matter of public record, it is nevertheless confidential information and cannot be disclosed by Attorney unless an exception to Rule 4-1.6 is met. See Missouri Informal Advisory Opinions 2015-02.

As a first option, Attorney should consider whether it is appropriate to seek informed consent from the client to permit Attorney to use the Motion for Summary Judgment as a writing sample. Informed consent is defined in Rule 4-1.0(e) and requires the lawyer to adequately communicate information and explanation about the material risks of the proposed course of conduct and reasonably available alternatives. See Rule 4-1.0, Comments [6], [7], and [8]. If client provides informed consent, Attorney may use the Motion for Summary Judgment as a writing sample, but Attorney should still consider if any redactions are appropriate to protect the interest of the client. If client does not provide informed consent, Attorney should not use the client’s Motion for Summary Judgment as a writing sample.

As a second option, depending on the nature of the information contained in the Motion for Summary Judgment, Attorney may consider if information such as names, case numbers, and other personally identifiable information may be removed such that Attorney does not reveal protected information that could reasonably lead to the discovery of the client’s information by a third person. Rule 4-1.6, Comment [4]. If such information may be removed, it would not be necessary to seek the informed consent of the client.

Finally, Attorney should consider submitting a writing sample that was not drafted as a result of a lawyer-client relationship, but instead consider submitting a writing sample such as an article that has been published, or a document that has been drafted by Attorney based on a hypothetical.

Informal Opinion 2020-03

QUESTION: In a conversation with Attorney, Client has threatened suicide. What is Attorney ethically obligated or permitted to do?

ANSWER: In representing Client, Rule 4-2.1, Advisor, permits Attorney to refer not only to law but to other considerations such as moral and social factors that may be relevant to Client’s situation. Comments [4] and [5] to Rule 4-2.1 provide guidance that where consultation with a professional in another field is something a competent lawyer would recommend. Attorney should make such a recommendation. Although an attorney ordinarily has no duty to give advice the client has indicated is unwanted, Attorney may initiate such advice to Client if doing so appears to be in Client’s interest. Client’s statements to Attorney are confidential per Rule 4-1.6. If Client grants specific informed consent for Attorney to disclose client’s threats to one or more individuals or entities who may be able to assist Client, Attorney may do so. See Rule 4-1.6, Comment [2]; see also Rule 4-1.0(e) and Comments [6] – [8] (regarding “informed consent”). Without Client’s informed consent, Rule 4-1.6 permits Attorney to disclose Client’s threats to the extent required by other law or a court order. Rule 4-1.6(b)(4). Whether Attorney has any such legal obligation is a question of law outside the scope of the Rules of Professional Conduct. Rule 4-1.6(b)(1) permits Attorney to disclose Client’s threats to the extent reasonably necessary to prevent death or substantial bodily harm that is reasonably certain to occur. Death or substantial bodily harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Rule 4-1.6, Comment [6]. The decision as to whether Attorney reasonably believes disclosure is necessary to accomplish the purpose specified in Rule 4-1.6(b)(1) will require the use of Attorney’s professional judgment in light of all the circumstances known to Attorney. See Informal Opinion 2019-05; see also Rule 4, Scope, at [14]; Rule 4-1.6 permits, but does not require, disclosure in accordance with paragraph (b). Rule 4-1.6, Comment [13]. Any disclosure per 4-1.6(b) should be no greater than what Attorney reasonably believes is necessary to accomplish the specified purpose. Rule 4-1.6, Comment [12]. If Attorney believes Client is suffering from diminished capacity because of mental impairment, or for some other reason, Attorney should review Rule 4-1.14, Client With Diminished Capacity. Rule 4-1.14 may permit Attorney to take other reasonably necessary protective action to protect Client from substantial physical, financial, or other harm if Client is unable to act in his or her own interest.

Informal Opinion 2019-05

QUESTION: Attorney’s Client has left Attorney voice mail messages that can be interpreted as containing threats of bodily harm against Attorney and others. May Attorney report the threats to law enforcement?

ANSWER: The fact that Client has left threatening voice mail messages with Attorney is information related to the representation governed by Rule 4-1.6, Confidentiality of Information. Attorney is not permitted by Rule 4-1.6 to report the threats to law enforcement unless Client gives informed consent to the report or Attorney is revealing the information to the extent Attorney reasonably believes necessary to prevent death or substantial bodily harm reasonably certain to occur, in accordance with Rule 4-1.6(b)(1). Comment [6] to Rule 4-1.6 provides guidance that “such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date” if Attorney fails to take necessary action to eliminate the threat. The decision as to whether Attorney reasonably believes disclosure to law enforcement is necessary to accomplish the purpose specified in Rule 4-1.6(b)(1) will require the use of Attorney’s professional judgment in light of all the circumstances known to Attorney. Any report to law enforcement should be no greater than Attorney reasonably believes necessary to accomplish the purpose under Rule 4-1.6(b)(1). See Comment [12]. A decision by Attorney not to report the threats would not violate Rule 4-1.6. See Comment [13]. If Attorney believes Client is suffering from diminished capacity because of mental impairment, or for some other reason, Attorney should review Rule 4-1.14, Client With Diminished Capacity. Rule 4-1.14 may permit Attorney to take other reasonably necessary protective action to protect Client from substantial physical, financial, or other harm if Client is unable to act in his or her own interest.

Informal Opinion: 2015-02

QUESTION: Where Attorney plans to testify as an expert witness, may Attorney answer questions about Attorney’s prior representation of a client, where Attorney was ordered by a court in the previous case to testify about confidential information, and where Attorney’s testimony in the present matter would be similar to the testimony now contained in the public record?
ANSWER: Information related to Attorney’s representation of a former client is confidential and protected from disclosure by Rules 4-1.9(c) and 4-1.6. Even if the information is a matter of public record, it is nevertheless confidential information and must not be disclosed by Attorney except pursuant to a valid exception to Rule 4-1.6. See Comment [10]. Attorney is permitted to disclose information related to the former representation to the extent reasonably necessary to comply with other law or a court order. Rule 4-1.6(b)(4). Whether other law requires disclosure of the information is a matter outside the scope of the Rules of Professional Conduct. If the court in which Attorney testifies orders Attorney to reveal confidential information without former client consent, Attorney should oppose the order and assert all nonfrivolous claims that the order is not authorized by other law or that the information is protected by privilege or other applicable law. Comment [11]. The ethical obligation to protect confidential information is broader than the attorney-client privilege. See Mo. Informal Ethics Op. 20030016 (2003). Attorney should seek to ensure that any order is as specific as possible and limits access to the testimony to those with a need to know. Rule 4-1.6, Comment [12]. Unless review is sought, Attorney is permitted to comply with the order.

Informal Opinion: 20060004

QUESTION: Attorney prepared an agreement for a client who is now deceased. Litigation is pending between the estate of the deceased, and various entities and heirs of the deceased. Attorney provided copies of the agreement to each attorney involved in the litigation. Attorney has since been served with a subpoena to have a deposition taken and to produce all files and documentation regarding the deceased. It is Attorney’s understanding that Attorney may only disclose the information if a court orders Attorney to do so after the issue of confidentiality has been fully raised. What should Attorney do to present the issue of confidentiality to the court? Is it Attorney’s responsibility to initiate a proceeding to obtain the court order? If the other attorneys involved in the litigation present the issues to the court, is Attorney required to be present at the hearing?

ANSWER: Attorney can only provide the information pursuant to a court order after the issue of confidentiality has been fully presented. Attorney should seek to have such an order as specific and limited as possible. There are many ways in which the issue can be presented to the court. It is permissible for Attorney to cooperate with the other attorneys and parties involved and to stipulate to facts, other than those related to the confidential information at issue. Attorney and the other attorneys can work out whether Attorney will file a motion, such as a motion to quash or for a protective order, or whether they will file a motion to compel. This is an area in which a stipulation might establish the necessary facts without the need for going through the process of a deposition at which Attorney would refuse to answer. It will be necessary for Attorney to know that the issue of confidentiality has been fully presented. If Attorney knows that another attorney will be fully presenting that issue, it is not necessary for Attorney to be present. However, it is probably advisable for Attorney to be present in the event that the court has questions for Attorney.

• See also Informal Opinions 20010154; 20000234; 20000165; 990146; 990118; 980080; 970100; 960130; 950264; 950018; 940088

Informal Opinion 2020-26

QUESTION: Attorney’s office laptop, cell phone, bar card, and credit cards were stolen out of Attorney’s locked vehicle. What do the Rules of Professional Conduct require Attorney to do?

ANSWER: If a stolen electronic device contains, or provides potential access to, information related to the representation of clients or former clients, Attorney must take all steps reasonably necessary to prevent unauthorized access to the information. See Rules 4-1.6(c) and 4-1.1. These steps may include, but may not be limited to, deactivating the cell phone; taking appropriate steps to secure Attorney’s law firm network and/or data in offsite storage; changing all passwords that may be stored on the electronic device; and consulting with a qualified information technology professional if appropriate. Attorney must communicate with affected clients to the extent reasonably necessary to allow each client to make informed decisions about the representation. Rule 4-1.4; see Rule 4-1.9(c) and Informal Opinion 2017-02. Attorney must comply with any applicable law requiring notice to affected persons regarding disclosure of their personal information. See Preamble to Rule 4 at [5]. Attorney must take all necessary steps to protect the funds in the client trust account from unauthorized transfers and should monitor the trust account closely. See Rule 4-1.15(a)(3) and Comment [2]. To address the stolen bar card, Attorney may contact the Office of Attorney Enrollment of the Supreme Court of Missouri. Attorney may also consider taking steps to protect the security of Attorney’s e-filing account with applicable courts and consulting Attorney’s malpractice insurance carrier for additional advice

Informal Opinion 2018-08

QUESTION: May Attorney respond to a negative online review about the representation of a former client if Attorney confines the response to comments directed to information already disclosed by the former client in the review?

ANSWER: In most circumstances, Rules 4-1.9(c) and 4-1.6 prohibit Attorney from revealing information relating to the representation of a client in response to a negative online review, even where the client or someone writing on behalf of the client has posted criticism of the quality of Attorney’s representation. Per Rule 4-1.9(c), Attorney has a duty to a former client not to reveal confidential information except as would be permitted with respect to a client. A negative online review generally does not constitute a “controversy” sufficient to trigger the exception in Rule 4-1.6(b)(3) and permit a lawyer to reveal confidential information to the extent reasonably necessary to establish a defense in a controversy between the lawyer and the client. Even if the information is not privileged as a matter of law such that Attorney could be compelled to disclose it in a legal proceeding, Rule 4-1.6 does not permit the voluntary disclosure of confidential information by Attorney in response to an online review. See Comment [3]. Rule 4-1.6 protects all information related to the representation, whatever its source. Comment [3]. Also prohibited are disclosures by a lawyer that do not reveal protected information but could reasonably lead to the discovery of such information by a third person. Comment [4]. If Attorney chooses to post a response to an online review, the response may acknowledge an attorney’s obligation to comply with professional obligations and must reveal no information related to the representation in violation of Rule 4-1.6.

Informal Opinion 2015-02

QUESTION: Where Attorney plans to testify as an expert witness, may Attorney answer questions about Attorney’s prior representation of a client, where Attorney was ordered by a court in the previous case to testify about confidential information, and where Attorney’s testimony in the present matter would be similar to the testimony now contained in the public record?

ANSWER: Information related to Attorney’s representation of a former client is confidential and protected from disclosure by Rules 4-1.9(c) and 4-1.6. Even if the information is a matter of public record, it is nevertheless confidential information and must not be disclosed by Attorney except pursuant to a valid exception to Rule 4-1.6. See Comment [10]. Attorney is permitted to disclose information related to the former representation to the extent reasonably necessary to comply with other law or a court order. Rule 4-1.6(b)(4). Whether other law requires disclosure of the information is a matter outside the scope of the Rules of Professional Conduct. If the court in which Attorney testifies orders Attorney to reveal confidential information without former client consent, Attorney should oppose the order and assert all nonfrivolous claims that the order is not authorized by other law or that the information is protected by privilege or other applicable law. Comment [11]. The ethical obligation to protect confidential information is broader than the attorney-client privilege. See Mo. Informal Ethics Op. 20030016 (2003). Attorney should seek to ensure that any order is as specific as possible and limits access to the testimony to those with a need to know. Rule 4-1.6, Comment [12]. Unless review is sought, Attorney is permitted to comply with the order.