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The Importance of Confidentiality in the Lawyer-Client Relationship

● The attorney-client privilege is fundamental in both the civil law and
common law systems.
● Other professions, like medical doctors, also have a duty of confidentiality.
● The lawyer's duty of confidentiality is recognized as more extensive and
central to the relationship.
● The lawyer's role as a keeper of secrets ensures that clients are
comfortable disclosing information.
● Confidentiality can be seen as detrimental to the objective of truth-seeking
in the legal system.
● One justification for confidentiality is that it encourages clients to disclose
relevant information.
● Clients may not always share all relevant information, either due to lack of
understanding or fear of judgment.
● Lawyers must be prepared to cope with clients withholding information, as
it is a reality of the legal practice.
● If lawyers were expected to disclose client secrets, clients would stop
sharing damaging information and the opportunity for advising them in
proper conduct would be lost.
Abandoning attorney/client privilege and the duty of confidentiality
● Lawyers are expected to preserve their client's confidences and err on the
side of keeping silent.
● Lawyers must keep both confidences and secrets, with secrets being
broader and including any information that could be disadvantageous to
the client if disclosed.
● Even if a lawyer learns of information from a source other than the client,
they must still keep it confidential.
● Information obtained from sources other than the client is called "work-
product" and may be subject to disclosure by a court.
● The duty of confidentiality is broad and cannot be waived by anyone, not
even the client. It is an absolute duty to maintain client secrets.
Absolute protection of client's secrets and exceptions in different legal
systems
● In Cambodia's legal system, lawyers are not allowed to disclose
confidential information from a client, even if there is public interest or
influence from family and friends.
● This absolute protection is necessary because in a socialist legal system,
the lawyer's loyalty is always to the state, not the client.
● Judges and government officials in Cambodia may often demand to know
a lawyer's knowledge about a client, but this provision protects both the
lawyer and client from unreasonable demands.
● In other nations like the US, there are exceptions to lawyer-client
confidentiality, such as with client consent, legal requirements, or in cases
of rectifying illegal acts committed by the client.
● In Japan, lawyers have more discretion to decide when disclosure of
confidential client information is justified, except in cases of criminal intent.
Code of Ethics for Practicing Attorneys
● "Confidentiality" is a provision in the Code of Ethics that allows a lawyer to
disclose information in certain circumstances such as a claim of
malpractice or a dispute about legal fees.
● The attorney-client privilege is a privilege that belongs to the client, not the
lawyer. It is the client's right to demand that the lawyer maintain secrecy.
● The client, not the lawyer, decides whether or not to waive the privilege
and make a disclosure.
● Lawyers need to be cautious in assuming that they are authorized by a
client to make disclosures when they believe it is in the client's interest.
The client's silence can sometimes be misinterpreted as consent.
● The Cambodian code explicitly states that confidentiality may not be
waived by anyone, including the client.
● In contrast, Australian lawyers must keep information confidential unless
the client authorizes disclosure, which can lead to misunderstandings and
the lawyer believing they have received implied authorization.
● The obligation of confidentiality is closely related to the lawyer's duty of
loyalty and can pose conflicts of interest when a lawyer has confidential
information about one client.
Importance of Confidentiality and Attorney-Client Privilege
● The lawyer's obligation of secrecy conflicts with the obligation of loyalty to
multiple clients.
 ● Importance of confidentiality requires decline to act for a conflicting client.
● Cambodian code has Article 27 requiring communications between
lawyers to be confidential.
● Concept of not using settlement negotiation statements as evidence in
court to encourage frank discussions.
● Article 27 guarantees confidentiality between lawyers.
● Written and verbal exchanges between lawyers are confidential.
● Exceptions to confidentiality include procedural documents, official letters
delivering non-confidential documents, and letters constituting an
agreement.
Differences in Approaches to Lawyers' Obligations and Duties
● Different codes have different rules regarding lawyers being both a witness
and an advocate for a party.
● American codes state that a lawyer should not act as an advocate if they
are likely to be a necessary witness in a trial.
● Evidence of conduct or statements made in compromise negotiations is
not admissible according to American codes.
● The Cambodian code offers a more effective protection against testimony
about settlement negotiations.
● The alternative approach forces lawyers to think about possible difficulties
created by becoming a witness, even if it is on a subject other than
negotiations.
● The advantages and disadvantages of these two approaches are
discussed.
● The preferred approach and its effects on encouraging or discouraging
settlement and fairness of trials are questioned.
● The tension between a lawyer's duty of confidentiality and duty to avoid
assisting a client in illegal acts is addressed.
● The Cambodian code and other codes are compared in terms of offering
guidance in finding the line between legitimate defense and assisting in
future unlawful conduct.
● American codes allow lawyers to reveal client confidences if it involves the
intention to commit a crime and the information necessary to prevent it.
● The Australian code permits lawyers to disclose a client's planned crime
only if it is a serious one.
Complexity of lawyer-client confidentiality in disclosing potential
criminal activity
● Different American codes of ethics have different standards for when a
lawyer can disclose a client's planned crime.
● Some codes permit disclosure if the planned crime is a serious felony or a
crime of violence against a person.
● The decision to disclose is left to the judgment of the lawyer.
● The dividing line is whether the client's criminal act has already occurred or
is yet to occur.
● If the crime is already completed, the lawyer must defend without revealing
confidential information.
● If the crime has not yet occurred, the lawyer may choose to disclose client
confidences to prevent it.
● The practical application of this distinction can be more complicated than it
seems in theory.
● Rule 2.1 .3 of the Law Society of New South Wales Professional Conduct
and Practice Rules and Rule 1 .6(b)(l) of the ABA Model Rules of
Professional Conduct provide guidelines on confidentiality.
● Lawyer Pouv is representing a client named Rath in his business affairs.
● Rath tells Pouv about a scheme to avoid paying import taxes.
● Pouv advises Rath against the illegal scheme, but Rath insists on
proceeding.
● The question is whether Pouv should disclose this information to the
authorities.
● The complexity arises in determining exactly what information can be
disclosed in this situation.
The Tension Between a Lawyer's Duties
● The text discusses the tension between a lawyer's duty to keep a client's
secrets and the duty to avoid assisting a client in wrongful conduct.
● The author mentions that the full range of problems created by this tension
is not presented in the text.
● The author suggests that one question arising from this tension is which
duties are implicated and where the problem appears.
● The text presents several hypothetical scenarios, such as what a lawyer
should do if a client, Rath, discloses similar conduct during a criminal
prosecution.
● Another scenario is when Rath insists on testifying and claiming that he
thought the fraudulent company was legitimate.
● The author poses questions about a lawyer's options in these scenarios,
including withdrawal from the case, trying to straighten out tax problems
through the lawyer, or becoming a participant in the fraudulent scheme.