Details

Autor(en) / Beteiligte

• Farrar, Mallory H

Titel

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

Ist Teil von

• The University of Memphis law review, 2017-01, Vol.48 (2), p.583-624

Ort / Verlag

Memphis: University of Memphis

Erscheinungsjahr

2017

Quelle

Nexis Uni (LexisNexis)

Beschreibungen/Notizen

• 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. 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. Clients in states like Tennessee, where the professional rules sometimes mandate disclosure, need these thorough explanations the most.17 This Note further argues that, because the legal profession self-regulates, and lawyers shy away from discussing confidentiality, the first step toward achieving any meaningful explanation of confidentiality must begin with an amendment to the rule that imposes a duty to explain on lawyers.18 This Note proposes that the Tennessee Supreme Court adopt an amendment to the Tennessee Rules of Professional Conduct ("Tennessee RPC" or "RPC") that requires lawyers within the state to explain, in plain language,19 the contours of confidentiality to all clients at the beginning of the lawyer-client relationship.