Bar Counsel Notes: Client Confidentiality


Lawyer represents claimant A in a fee collection action filed against her by her former attorney, X. In preparation for defending that collection action, Lawyer receives documents from A that were in her client file that X had marked as being "privileged and confidential." Is Lawyer (as A's current attorney) allowed to read those documents?

Answer: Yes - those documents are not prohibited from review by Lawyer, i.e. they are not covered by M. R. Prof. Conduct 4.4(b) (Inadvertent Disclosures). Instead, the documents concern A's confidentiality privilege that arose from her prior attorney/client relationship with X. As a result, it is A's privilege to now waive, which she has done by delivering the documents to Lawyer to assist in defense of X's current litigation against her.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.