The ABA (American Bar Association) Model Rules of Professional Conduct provides the following guidelines regarding Attorney-Client Privilege

Rule 1.6 Confidentiality of Information

(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).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.

Virginia State Bar professional guidelines under Rule 1.6

The Virginia State Bar professional guidelines under Rule 1.6 pertaining to confidentiality of information are the following:

(a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

(b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal:

(1) such information to comply with law or a court order;

(2) such information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

(3) such information which clearly establishes that the client has, in the course of the representation, perpetrated upon a third party a fraud related to the subject matter of the representation;

(4) such information reasonably necessary to protect a client’s interests in the event of the representing lawyer’s death, disability, incapacity or incompetence;

(5) such information sufficient to participate in a law office management assistance program approved by the Virginia State Bar or other similar private program;

(6) information to an outside agency necessary for statistical, bookkeeping, accounting, data processing, printing, or other similar office management purposes, provided the lawyer exercises due care in the selection of the agency, advises the agency that the information must be kept confidential and reasonably believes that the information will be kept confidential.

(c) A lawyer shall promptly reveal:

(1) the intention of a client, as stated by the client, to commit a crime and the information necessary to prevent the crime, but before revealing such information, the attorney shall, where feasible, advise the client of the possible legal consequences of the action, urge the client not to commit the crime, and advise the client that the attorney must reveal the client's criminal intention unless thereupon abandoned, and, if the crime involves perjury by the client, that the attorney shall seek to withdraw as counsel;

(2) information which clearly establishes that the client has, in the course of the representation, perpetrated a fraud related to the subject matter of the representation upon a tribunal. Before revealing such information, however, the lawyer shall request that the client advise the tribunal of the fraud. For the purposes of this paragraph and paragraph (b)(3), information is clearly established when the client acknowledges to the attorney that the client has perpetrated a fraud; or

(3) information concerning the misconduct of another attorney to the appropriate professional authority under Rule 8.3. When the information necessary to report the misconduct is protected under this Rule, the attorney, after consultation, must obtain client consent. Consultation should include full disclosure of all reasonably foreseeable consequences of both disclosure and non-disclosure to the client.

 The common law recognizes that the client’s confidences must be protected from disclosure.  The attorney has a duty of confidential information obligation not only toward a client but also toward a potential client who has sought early legal assistance, and toward a former client.  As a matter of fact, clients come to attorneys in order to determine what their rights are and whether they need representation.  Clients usually follow the advice given by the attorney and the law is upheld. 

Since the client-attorney privilege exists, the client is encouraged to communicate fully and frankly with the attorney even for an embarrassing or legally damaging subject matter. 

Compare ABA and Virginia Rules 

The Virginia Rules of Professional Conduct on this matter vary from the ABA Model Rules.  The ABA Model Rules have a broader concept, including all information “relating to” the presentation, while the Virginia Rules of Professional Conduct define the information as “gained in the professional relationship.”  However, the Virginia Rules of Professional Conduct added that the duty differed from the evidentiary privilege in that it existed “without regard to the nature or source of information or the fact that others share the knowledge.”

In Virginia, the confidentiality obligation is not limited to the matters communicated in confidence between the attorney and the client, but includes all information gained in the professional relationship that the client could expect to be not disclosed or that would be likely to be detrimental to the client, whatever its source.  Therefore, an attorney may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. 

Honor Code

In addition, the attorney has an obligation to reveal information in the following situations: 

1.)    When the client plans to commit a crime and the information held by the attorney could prevent the crime, the attorney-client privilege is waived and the attorney has the obligation of revealing the information.  However, before the attorney uses this exception of the attorney-client privilege, the attorney shall first advise the client that the attorney must reveal the client’s criminal intention unless the client abandons his plan, and the attorney shall also urge the client not to commit the crime.   

2.)    When the client plans to commit a crime of perjury, the attorney-client privilege is automatically waived, and the attorney, who has the obligation of revealing the information, also should seek to withdraw as counsel.

3.)      When the attorney has information that clearly establishes that his client has perpetrated a fraud related to the subject matter of the representation before a tribunal, the attorney-client privilege is waived and the attorney has an obligation to reveal the information.  However, before revealing such information, the attorney shall first advise his client that he must report the fraud to the tribunal. 

Changing Technologies

How may new technologies impact this duty of protection that an attorney has toward his clients?

Wireless Communications, Smart Phones, Email and More

Over the historical transition of time, each of the new communications technologies such as the telephone, cordless phone, fax machine and cell phone have received some form of statutory or common-law protection for attorney-client communications.  But sometimes, these protections were long in coming.  Alexander Graham Bell was awarded a U.S. patent for a telephone in 1876.  However, it was not until 1967 that the U.S. Supreme Court recognized, in Katz v. United States, a reasonable expectation of privacy in a telephone conversation.

Pretty quickly, bar associations recognized that email communications needed to conform to an attorney’s duty of confidentiality.  Several bar ethics committees have concluded that the expectation of privacy for electronic mail is no less reasonable than the expectation of privacy for ordinary telephone calls. 

However, the advent of new wireless devices, such as the BlackBerry and the iPhone, has raised concerns about the exposure of unauthorized interception of an electronic message.  Because the unauthorized interception is illegal under federal law, such interception cannot constitute a waiver but it can open the door for malpractice liability.  Certain legal opinions have expressed that an electronic mail is susceptible to interception, misdirection and attorney error that could give rise to malpractice liability.  It is recommended that the attorney take the following measures:

·         Advise the client about the risk associated with the use of email and obtain the client’s consent

·         Do not use the internet for communications involving extraordinarily sensitive matters that would be damaging to the client if disclosed to any outside party

·         State on email messages that they are privileged communications

·         Consider using encryption when working with clients who are comfortable with it

The Employee Expectation of Privacy

The expectation of privacy has changed.  While the protection of medical and financial records has been a longstanding concern, employers now are trying to limit the privacy of their employees.  The federal Health Insurance Portability and Accountability Act (HIPAA) requires health care providers to maintain the privacy of patient information, requires consent for disclosure of paper and electronic records, and prohibits unauthorized use of patient records for employment purposes.  The Gramm-Leach-Bliley Act prohibits financial institutions and their affiliates form disclosing certain personally identifiable financial information.  However, in the area of privacy for employees, the evolution of privacy is moving in the opposite direction.  Many companies are implementing technology-based policies providing that employees have no expectation of privacy in the employer’s email, Internet, voicemail and network systems.  Certain employer codes of conduct require employees to expressly consent to monitoring access and use, and disclosure of unauthorized activities on computer systems.  Attorneys should be aware that their client may have consented to such codes of conduct.  The attorney should ask in the intake form if confidential information can be sent through the client’s professional email address.

On the other hand, there are instances where the attorney-client privilege has been found to trump an employer code of conduct.  For example, in Stengart v. Loving Care Agency Inc. (2010 N.J. LEXIS 241), the New Jersey Supreme Court held in March 2010 that the attorney-client privilege applied to e-mails that an employee sent to her lawyer from the company’s laptop computer through her private email account, despite a company policy disclaiming any right of privacy in the use of the company’s computer systems.  The Court found that the employer’s policy was ambiguous and did not clearly permit the employer to access communications otherwise protected by the attorney-client privilege. 

Metadata

What is Metadata?

According to the National Information Standards Organization (NISO), metadata is defined as information that makes it easier to retrieve, use or manage an information resource.  Wikipedia, the web-based encyclopedia, loosely defines metadata as “data about data.”  It is a concept that applies primarily to electronically archived or presented data.  Metadata is used to describe the definition (descriptive metadata), structure, and administration of data files with all contents in context in order to ease the use of the captured and archived data for further use.  Metadata answers the “who, what, when, where, why, and how” about every facet of the data that are being documented.

 The descriptive metadata describes a resource for purposes such as discovery and identification.  It includes elements such as title, abstract, and keywords.  The structural metadata indicates how compound objects are put together, for example, how pages are ordered to form chapters. The administrative metadata provides information to help manage a resource, such as when and how it was created, file type and other technical information, and who can access it.  For example, a web page may include metadata specifying what language it's written in, what tools were used to create it, where to go for more on the subject, and so on.  The main two subsets of administrative data are the rights management metadata and the preservation metadata.  The rights management metadata deals with intellectual property rights.  The preservation metadata contains information needed to archive and preserve a resource.

Metadata can be embedded in a digital object or it can be stored separately.  Metadata is often inserted in HTML documents and the headers of image files. 

TechTerms.com defines metadata as the description of other data.  Metadata provides information about a certain item's content in a document.  For example, an image may include metadata that describes how large the picture is, the color depth, the image resolution, when the image was created, and other data.  A text document's metadata may contain information about how long the document is, who the author is, when the document was written, and a short summary of the document.  It can also include the history of the modifications that occurred in a document.  
 

Web pages often include metadata in the form of “meta tags.”  Description and keyword meta tags are commonly used to describe the Web page's content.

A meta tag is a special HTML (HyperText Markup Language) tag that is used to store data about a Web page but is not displayed in a Web browser.  For example, meta tags provide information about what program was used to create a Web page, a description of the page, and keywords that are relevant to the page.  Many search engines employ the information stored in meta tags when they index Web pages.

What is the Use of Metadata?

An important reason for creating descriptive metadata is to facilitate discovery of relevant information.  Metadata can help resource discovery, organize electronic resources, facilitate interoperability and legacy resource integration, provide digital identification, and support archiving and preservation.