Lawyers: When Can They Withhold Information?

Lawyer-client communications are protected by the attorney-client privilege, which encourages clients to be open with their lawyers and allows lawyers to effectively represent their clients. However, there are certain instances where a lawyer may be justified in delaying or withholding information from their client. For example, a lawyer may delay disclosing sensitive information to prevent a client from reacting imprudently, as long as it is in the client's best interests and the lawyer is taking steps to protect the client's well-being. In addition, a lawyer must comply with court orders and rules governing confidentiality and litigation, which may prohibit the disclosure of certain information to the client.

Attorney-client privilege

The origins of attorney-client privilege can be traced back to medieval England, where the king presided over trials and relied on attorneys to present cases. Despite attorneys being considered officers of the court, expected to disclose all relevant information, courts recognised that forcing attorneys to reveal client confidences undermined justice. This led to the principle that even the king could not compel an attorney to disclose privileged communications. By the 18th century, this doctrine had solidified in English common law and was later carried over to the American legal system.

The purpose of attorney-client privilege is to encourage clients to make "full and frank" disclosures to their attorneys, enabling them to provide candid advice and effective representation. The privilege does not apply if a client seeks legal advice to further a criminal act or fraud, or if the communication is disclosed to individuals who are neither the attorney nor the client. Additionally, some courts may limit the privilege if there is an overriding public policy interest, such as protecting a child.

In most cases, attorneys should be open and transparent with their clients, providing them with the information they need to make informed decisions about their case. However, there may be rare instances where an attorney is legally required to withhold certain information from their client, such as when a judge issues a court order forbidding the disclosure of specific information.

Court orders

For example, during a criminal defense case, the prosecution might share sensitive evidence with the defense attorney, but a court order may prohibit the attorney from disclosing the specifics of this evidence to the client. In this case, the lawyer must comply with the court order while still informing the client that certain evidence exists and is being addressed in the defense strategy.

In another example, an attorney withheld a psychiatric evaluation from their client based on the psychiatrist's recommendation that disclosure would cause severe emotional distress. The court reviewed the attorney's actions and determined that the decision was made in the client's best interests and was consistent with ethical obligations.

Lawyers must balance their duty to keep clients informed with the need to protect clients from potential harm. This includes assessing the prudence and impact of immediate disclosure and adhering to court orders or rules governing confidentiality.

Additionally, a lawyer may be justified in delaying the transmission of information when the client would be likely to react imprudently to an immediate communication. For instance, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. In such cases, the lawyer must still take steps to ensure the client's well-being is protected.

Client confidentiality

Client-lawyer confidentiality is a key principle of the legal system. It applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

In general, attorneys should be open with their clients and make every effort to explain what is going on in their case. This includes supplying information to help the client understand how to best accomplish what they want in the case. Attorneys should also supply enough information for the client to take part in discussions if they want to do so.

However, there are a few instances where an attorney might withhold information from a client. For example, a judge may hand down a court order that forbids disclosing certain information, or a rule of the court may not allow it. In addition, a lawyer may reveal information relating to the representation of a client if they reasonably believe it is necessary to prevent reasonably certain death or substantial bodily harm, or 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.

Furthermore, a lawyer's duty of confidentiality continues even after the client-lawyer relationship has terminated. Whether a lawyer may be required to take additional steps to safeguard a client's information, such as complying with state and federal data privacy laws, is beyond the scope of these rules.

Lawyer's own interests

Lawyers are generally obligated to keep their clients informed about their case and should not withhold information because it is more convenient to keep silent or because it furthers the interest of the attorney. However, there are a few instances where an attorney might withhold information from a client.

For example, a lawyer may be justified in delaying the transmission of information when the client would be likely to react imprudently to an immediate communication. In such cases, the lawyer must still take steps to ensure the client's well-being is protected. This is a nuanced issue in legal practice, and lawyers must balance their duty to keep clients informed with the need to protect clients from potential harm.

In some cases, rules or court orders governing litigation may dictate that certain information supplied to the lawyer may not be disclosed to the client. For example, during a criminal defense case, the prosecution may share sensitive evidence with the defense attorney, but a court order may prohibit the attorney from disclosing the specifics of this evidence to the client. In such cases, the lawyer must still inform the client that certain evidence exists and is being addressed in the defense strategy.

Additionally, when transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This includes complying with state and federal laws that govern data privacy and notification requirements upon the loss of, or unauthorized access to, electronic information.

It is important to note that withholding information, even with justified reasons, can impact the client's trust and confidence in their attorney. Lawyers must maintain transparent communication and provide appropriate explanations when information must be delayed or withheld.

Preventing harm

In certain cases, lawyers may be justified in delaying the transmission of information to their clients if immediate disclosure is likely to cause harm. For example, if a client's psychiatric diagnosis is likely to cause significant harm if revealed, a lawyer may delay disclosing this information while taking steps to protect the client's well-being. This is supported by Rule 3.4(c) and Rule 1.4, Comment (7), which allow for withholding information supplied to the lawyer if dictated by rules or court orders governing litigation.

Additionally, lawyers must comply with court orders and rules governing confidentiality. For instance, during a criminal defense case, a court order may prohibit the attorney from disclosing specific evidence to the client. In such cases, the lawyer must still inform the client that certain evidence exists and is being addressed in the defense strategy.

The attorney-client privilege also plays a crucial role in preventing harm. Lawyers are typically obligated to maintain the confidentiality of communications with their clients, even if the information is revealed by potential clients or during preliminary communications. However, this privilege may not apply if the client intends to commit a future crime or act of fraud. Most states allow or require attorneys to disclose information that will prevent death or serious injury.

To ensure ethical and legal compliance, lawyers must exercise sound judgment and discretion when deciding to withhold information. They should consult relevant professionals, such as medical experts, and thoroughly document their reasoning. While withholding information can impact client trust and confidence, lawyers must balance this with their duty to protect their clients from potential harm.

Frequently asked questions