Consequences of Breach

Consequences of Breach

A breach of the duty of confidentiality carries consequences on two separate tracks. Professional discipline turns on the violation alone. Civil liability needs a source of law outside the ethics rules and, for damages, proof of harm.

Discipline comes first because Rule 1.6(a) speaks directly to the lawyer: a lawyer shall not reveal information relating to the representation unless the client gives informed consent, the disclosure is impliedly authorized, or paragraph (b) permits it.¹ The rule also requires reasonable efforts to prevent inadvertent or unauthorized disclosure of, or unauthorized access to, that information.² A lawyer who falls short of either command violates the ethical rules, and the violation subjects the lawyer to discipline by the governing bar.³ Neither command asks whether the client lost anything. The duty rests on the lawyer's status as a fiduciary and on the loyalty that status demands.⁴ A lawyer who reveals protected information without a gateway has therefore breached that loyalty, even if no harm follows.

Civil liability stands on different footing. The ethics rules do not create an independent basis for criminal or civil liability, although some jurisdictions allow a violation to be offered as evidence.⁵ A client who wants a remedy in court must therefore look to law outside the rules, and the lawyer's fiduciary role supplies it. Fiduciary and trust relationships give rise to a duty of confidentiality as a matter of law, even without a contract, and an attorney who receives a client's trade secrets illustrates the point.⁶ A breach of confidentiality is thus a breach of a legal duty as well as an ethical one, and it can support a claim against the lawyer for breach of fiduciary duty.

The relief a court can give includes money damages, an injunction, or both.⁷ In Prudential Insurance Co. of America v. Massaro, an attorney acting in an in-house capacity made unauthorized disclosures, and the court granted a permanent injunction barring further disclosure.⁸ An injunction fits that situation because a disclosed secret cannot be recalled, and the court can only stop the next disclosure.

Damages answer a different need. In Perez v. Kirk & Carrigan, a Coca-Cola truck driver was involved in an accident that killed 21 children, and company attorneys told him they would represent him in the legal action that followed. On that understanding he gave a sworn statement. Without his consent, the attorneys handed it to the district attorney, and a grand jury indicted him for involuntary manslaughter.⁹ The court found that the statement was a protected attorney-client communication revealed without his consent, and it held that the mental anguish and emotional distress he suffered as a result stated a valid claim for damages.¹⁰ The statement was the client's own account, which is the source the privilege requires, because privileged information must come from the client and not from third parties.¹¹

The claim in Perez rested on proof of injury. Tort recovery compensates a loss, and the plaintiff must show the loss the breach caused. Discipline has no such requirement, and the difference shows most clearly when a breach leaves no injury behind.

The two variants differ only in harm, and only the civil track notices. An answer that excuses the lawyer because no one was hurt confuses discipline with tort. An answer that awards damages merely because a rule was violated reverses the civil side: the rules supply no cause of action, so recovery depends on fiduciary or tort law and on proof of loss.