Risk Update

When Client Identities are Confidential — Latest Guidance on Attorney-Client Client ID Privilege

This one caught my eye as I considered the potential implications for information sharing typically conducted during lateral lawyer moves… If you’re in a specialized practice looking to make a lateral move, and the hiring firm asks for a list of clients… what then? Ask all clients for permission?

Fifth Circuit Reaffirms That Client Identity Is Privileged Only in Narrow Circumstances” —

  • “As a general proposition, a client’s identity is not protected by the attorney-client privilege and is therefore subject to subpoena. However, in cases where the disclosure of the client’s identity necessarily discloses the substance of the legal advice provided to the client by the attorney, the privilege may apply.”
  • “The U.S. Court of Appeals for the Fifth Circuit recently addressed how specific the link between client identity and advice given must be in order to constitute a disclosure of the substance of the legal advice provided to clients by their attorneys in Taylor Lohmeyer Law Firm P.L.L.C. v. United States, in which the IRS used a ‘John Doe’ summons that sought the identity of clients for whom the law firm had performed certain work.”
  • “Lawyers who receive subpoenas requiring the disclosure of client identities should carefully consider whether the clients’ identities and the substance of the legal services are inextricably connected, and they should be prepared to document this position in camera.”

And on the topic of what’s “public” (like client identity?) see: “New Jersey Supreme Court reiterates generally accepted notion that even if information is available to the public it is confidential if it is not generally known” —

  • “For this reason, the generally accepted definition of confidential information does not use the adjective “public.” According to this definition, confidential information is information related to the representation that is not generally known. (A couple of years ago, the ABA issued an ethics opinion clarifying the notion of generally known information.)”
  • “Thus, information can be public (in the sense that it is available to the public) but not generally known, in which case, the fact that the information is public does not change the fact that it is still confidential.”
  • “… recent decision by the New Jersey Supreme Court, again reiterates that this distinction is important and can result in problems for lawyers, often when the lawyers discuss information about former clients. The case is called In the Matter of Calpin, and the facts are similar to many other cases that have raised this issues in recent years. A client (or former client at the time) wrote a negative review about the lawyer in Yelp! and the lawyer decided to reply by, among other things, disclosing some information about the client. The information was “public” in the sense that it was available in public records, but is was not generally known and for that reason the court held that the lawyer violated the duty of confidentiality.”
  • For more, see: text of opinion