Can a Lawyer Use My Confidential Information in a Different Case?
LAWYERS MUST OBTAIN INFORMED WRITTEN CONSENT TO USE CONFIDENTIAL INFORMATION IN “OTHER CASES”
Special rules govern the way lawyers can use confidential information that was obtained from, or belongs to, a client.
If a lawyer receives or learns confidential information from a client, or in the course of representing a client, the lawyer cannot use that information when representing a different client in the same or a substantially related matter, unless the lawyer obtains the informed written consent of the first client.
For this purpose, a “matter” does not only include litigation. “Matter” means any proceeding (judicial or otherwise), any petition or request for an official ruling, any contract or transaction, any claim or controversy, any investigation, any charge or accusation (including in connection with arrests and criminal charges), or any action focused on the interests of one or more identifiable persons. In other words: pretty much any situation in which a lawyer might represent a client in a professional context.
KNOWLEDGE OF CONFIDENTIAL INFORMATION MAY BE GROUNDS FOR DISQUALIFICATION
In some cases, even informed consent may not be sufficient to mitigate the problems caused by a lawyer’s possession of confidential information. A lawyer may be disqualified from representing a client entirely if the lawyer has received, or has access to, certain kinds of confidential information about or relating to an opposing party in the action.
For this reason, it is vital that lawyers pay close attention to, and keep good records of, the confidential information they receive and possess (whether or not the information is used in an active manner) in the course of representing clients. Some of the rules impact not only a single lawyer, but the entire firm at which that lawyer works–so a functional system for recording and managing confidential information is critical on a law firm level, too.
It’s important to note that many of the rules about confidential information–including the rules relating to disqualification of lawyers, use words like “receives” or “has access to” rather than “uses” or “knows.” This means that lawyers may face consequences arising from confidential information even when the lawyer did not actually read or study the information, if the information was provided to the lawyer and/or came into the lawyer’s possession.
Recently, a variety of laws around the world have been enacted that create more stringent rules about confidential information and its treatment. Since lawyers frequently possess a wide variety of information that qualifies as confidential in one sense or another, it is vital that lawyers and law firms manage client information, and other forms of confidential information, with proper care and in compliance with the applicable rules.
Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.
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