Academic journal article The University of Memphis Law Review

Everything You Tell Me Will Remain Confidential (Maybe): The Client's Right to Know about Tennessee's Confidentiality Disclosure Exceptions

Academic journal article The University of Memphis Law Review

Everything You Tell Me Will Remain Confidential (Maybe): The Client's Right to Know about Tennessee's Confidentiality Disclosure Exceptions

Article excerpt

I. Introduction

A client in Tennessee visits his lawyer to discuss the client's dismissal from a maintenance foreman position at a local university. The client, visibly irritated yet concerned, discloses to his lawyer that he has released toxic chemicals into the university's water supply that will cause people on campus to become severely ill. The client explains that, although he regrets his actions, he fears going to the authorities. The lawyer now faces a professional dilemma. She knows that the client could carry out such an act, and she reasonably believes that the client has, in fact, released toxic chemicals into the university's water supply. But the client has confided in her under the assumption that this information will remain confidential; he is communicating with his lawyer, after all, the one person whom he can trust to keep quiet, if only because she is obligated to do so-or so he thinks. She tries unsuccessfully to convince the client to go immediately to authorities simply to prevent harm to members of the campus community. Because of a mandatory provision in Tennessee's lawyer-client confidentiality rule, the lawyer must now go to the authorities herself, disclosing the client's confidential information in an attempt to prevent the bodily harm that will likely occur if she does nothing.

The rules of professional conduct in all states require lawyers to keep information relating to the representation of their clients confidential.1 But no state explicitly requires lawyers to explain to clients that the duty of confidentiality is limited, allowing-and sometimes requiring-disclosure in a growing number of circumstances.2 Although the empirical data relating to client perceptions of confidentiality is somewhat limited, what does exist tends to show that the typical legal client is unaware of the underlying caveats to confidentiality;3 most clients assume that a relationship with a lawyer creates a safe haven for questionable information.4 It makes sense, then, that the data also indicates that lawyers generally do not explain confidentiality or its nuanced exceptions to clients.5 This failure to communicate exposes clients to the risks of disclosure at a time when they feel most comfortable sharing information.

Although a majority of states grant lawyers total discretion to use a confidentiality exception to disclose client information, Tennessee is one of twelve that both permits and requires disclosure. 6 Under Tennessee Rule of Professional Conduct 1.6(c), Tennessee lawyers must disclose confidential client information to protect people from serious harm or death, to comply with a court order, or to comply with another law (for example, a child-abuse reporting statute).7 This required disclosure accords with the state's compelling interests in protecting human life8 and maintaining candor in the legal system, and it arguably serves society's best interests-but it deepens the rift between what clients believe about confidentiality and the reality of the ethical rule and its exceptions.9

This disconnect creates a bevy of issues for legal clients. A client who is unaware of the rules of confidentiality cannot choose a lawyer on his or her own terms10 or participate in the development of a strong lawyer-client relationship.11 In the event of an unforeseen disclosure of confidential information, a client may face further legal action or suffer other reputational harm while, at the very least, feeling betrayed and losing all confidence in the lawyer and possibly the legal system.12

Scholars, practitioners, and rule drafters have taken issue with the structure of the confidentiality rules and their controversial implications for decades, yet no consensus on a workable solution that informs the client of the risks of disclosure has emerged.13 Because many (if not most) lawyers feel that it is more beneficial to avoid a conversation about confidentiality with their clients,14 there is no reason to believe that lawyers will suddenly begin explaining the limitations of confidentiality to clients voluntarily. …

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