What are an attorney's duties as they relate to confidentiality of client information? - II

Last time, our blog discussed how clients whose cases involve subject matter that is embarrassing or potentially damaging in nature should know they are protected by Rule 4-1.6(e) of the Florida Rules of Professional Conduct, which is designed to encourage openness and enhance representation.

Specifically, this rule requires that attorneys must generally keep all information relating to representation confidential, meaning there are very limited scenarios in which they are required to reveal confidential client information or have the option of doing so.

It's important to understand that the rule also requires attorneys to make "reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or access to" otherwise confidential client information.   

In simpler terms, this means that an attorney is required to take reasonable efforts to protect client information against inadvertent/unauthorized disclosure by themselves or those under their supervision, and prevent illicit third-party access.

When considering whether an attorney's efforts to safeguard information are reasonable, some of the factors considered include:

  • The sensitivity of the information
  • The risk of disclosure if additional safeguards are not taken
  • The difficulty and expense of adopting these additional safeguards
  • The extent to which the additional safeguards impede the lawyer's representation

A client may provide their informed consent to go without security measures otherwise mandated under Rule 4-1.6(e) or, conversely, require the attorney to implement additional security measures as a condition of representation.

Regarding the transmission of client information, the attorney is similarly required to take reasonable efforts to ensure it doesn't end up in the possession of unintended recipients. However, if the method of transmission/communication utilized by the attorney offers a reasonable expectation of privacy, no special security measures are required.

Here's hoping the foregoing analysis has proven helpful …

If you have reason to believe that you've been victimized by some form of legal malpractice, consider speaking with a skilled legal professional as soon as possible.

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