Confidentiality is critical to the attorney-client relationship. Clients depend on lawyers to maintain confidentiality, often in matters that are deeply personal or critical to the client’s interests. While all lawyers are generally aware of the duty of confidentiality, many do not understand the full scope of the duty. Rule 1.6 of the North Carolina Rules of Professional Conduct sets forth the lawyer’s duty to safeguard confidential information.

Rule 1.6(a) defines confidential information as any information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by one of the exceptions found in Rule 1.6(b). Note how broad this rule is. The rule applies not only to matters communicated in confidence by the client but also to all information acquired during the representation, whatever its source. And a lawyer may not reveal confidential information simply because it is generally known to the public. The disclosure must either be authorized by the client, impliedly authorized for the representation, or fall under one of the exceptions outlined in Rule 1.6(b).

Here are some things to consider about confidentiality under Rule 1.6:

1. Confidential Information Defined: The rule extends beyond attorney-client privilege, encompassing any information gained through the attorney-client relationship. 
2. Informed Consent: A lawyer may disclose confidential information if the client provides informed consent. This means that the client is fully aware of what information may be disclosed and the potential consequences of such disclosure.
3. Exceptions to Confidentiality: Rule 1.6(b) provides for certain exceptions under the rule that allow disclosure.  For example, a lawyer may reveal confidential information to respond to a malpractice claim or grievance. However, a lawyer may not reveal confidential information to respond to a negative online review, even where that review contains false information (2020 FEO 1).
4. Duty of Care: The rule also requires lawyers to take reasonable steps to protect confidential information, including safeguarding physical documents and ensuring electronic data is adequately protected from unauthorized access. Law firms should invest in secure technology such as encrypted emails, password-protected files, and secure file-sharing platforms—to protect client information.
5. Train Staff Regularly on Confidentiality: Confidentiality training should be a regular part of staff development. This includes educating not only attorneys but also administrative staff about their roles in safeguarding client information. They should be trained to recognize confidential information and understand the firm’s policies for handling such data.
6. Confidentiality Continues After Death of Client: The duty of confidentiality continues even after the death of a client. If you receive a subpoena for the file of a deceased client or are asked to testify regarding your representation of a now deceased client, you have a duty to assert confidentiality. 
7. Inadvertent Disclosure of Confidential Information: The comments to Rule 1.6 make clear that inadvertent disclosure of confidential information through the use of hypotheticals is also prohibited. A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible only if there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

Conclusion

Confidentiality under Rule 1.6 upholds the trust clients place in their attorneys. By implementing systems for safeguarding confidential information and fostering a culture of compliance, law firms can ensure they meet these critical ethical requirements, protect their clients, and avoid potential pitfalls.