When Are You Required to Breach Confidentiality? - Strategist
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When Are You Required to Breach Confidentiality?

A federal judge recently tossed a lawsuit against Florida attorney David Gilmore. Gilmore's elderly client, Thomas Kyros, died in a shootout after he fired several rounds at a woman and her daughter, with whom he was apparently obsessed. The family sued Gilmore, arguing that he had a duty to warn them about any possible danger.

The suit brings up interesting questions about the conflicts between negligence law and an attorney's duties to his clients. When do we, as attorneys, have a legal duty to disclose confidential information to third parties? And when can we?

Before we even get to the first question, we need to answer the second one. The ABA's Model Rules of Professional Conduct are a good place to start. Rule 1.6(b) gives attorneys permission to breach confidentiality when necessary to:

  1. Prevent reasonably certain death or substantial bodily harm;
  2. Prevent the client from committing certain types of crimes;
  3. Prevent, mitigate or rectify substantial injury caused by a client's crime when the client used the lawyer's services to further that crime;
  4. Secure legal advice about compliance with ethics rules;
  5. Establish a claim or defense on behalf of the lawyer;
  6. Comply with other law or court order.

Some states, including Florida, make the first and second options mandatory, whereas others, such as California, make disclosure discretionary.

Assuming that you have the option of ethically disclosing confidential information to third parties, should you? This blogger doesn't think there's a right answer. Which is why option number 4 above is incredibly important.

If you think nondisclosure is going to open you up to legal liability, talk to an attorney. Talk to your colleagues. Call the state's attorney ethics hotline. Attorneys often forget to protect themselves when wading through the world of ethics. Sometimes it should be about the client, but sometimes it should be about us.

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