The District Of Columbia: Where Lawyers Get The Gold Mine And Clients Get The Shaft

I am reading a recent District of Columbia Hearing Committee report involving an attorney’s violation of the duty of confidentiality.

The governing D.C. Rule reads in pertinent part

 (a) Except when permitted under paragraph (c), (d), or (e), a lawyer shall not knowingly:

(1) reveal a confidence or secret of the lawyer’s client;

(2) use a confidence or secret of the lawyer’s client to the disadvantage of the client;

(3) use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.

Contrast this provision with the ABA Rule

(a) A lawyer shall not reveal information relating to the representation of 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 paragraph (b).

Note the distinction – under the ABA Model Rule, the duty of confidentiality is taken seriously enough to strictly prohibit any breach. In D.C. , the breach must be a knowing one.

The reason for the departure from the ABA version?

It provides less protection to clients and adds an element that Disciplinary Counsel must prove to establish a violation.

It also may assist attorneys who seek to avoid civil liability for so-called “negligent” or ‘inadvertent” confidentiality lapses.

Once again, D.C. leaves no stone unturned in making its ethics rules as pro-lawyer and anti-client as is humanly possible. (Mike Frisch)