A fellow attorney just circulated a poll to his friends asking, “Are you starting to meet with your clients in person?” If you are restarting in-person meetings with your clients, consider whether you are in a jurisdiction that mandates contact tracing and whether that conflicts with your duty to maintain a client’s confidential information confidential.
Every jurisdiction has adopted some form of ABA Model Rule 1.6, Confidentiality of Information. It provides in part that:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
The mere fact that a person has consulted an attorney can be in itself confidential information. One obvious example is a famous celebrity visiting a divorce attorney.
The problematic situation arises if you learn that the client has COVID after an in-person meeting. Alternatively, what if you learn after the meeting that you have COVID? In jurisdictions that require contact tracing disclosure, or even for public policy and health considerations, you may need to disclose your client’s identity to contact tracing authorities. As an attorney, you should take a moment to learn the contact tracing and public health reporting laws in your jurisdiction. For example, right now, I understand that there is a tracing program in Massachusetts, but disclosure is voluntary, not legally required. This may change.
The easy answer to this dilemma is to discuss the issue before meeting a client in person. Model Rule 1.6 permits the disclosure of otherwise confidential client information with informed consent, so you should inform the client about contact tracing so the client can decide whether to meet in person or remotely.
The hard answer arises if you have not had this conversation. Absent informed consent from a client to disclose their identity to contract tracers, Model Rule 1.6 does permit – but does not require – disclosure to comply with a statutory requirement for contact tracing:
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: . . . (6) to comply with other law or a court order . . .
While the ethical rules may permit you to comply with a statutory requirement to disclose your client’s identity in a COVID tracing situation, such a unilateral decision to make disclosure may not be good for your attorney-client business relationship.
In conclusion, you should seriously consider discussing the possibility of contact tracing disclosure obligations before meeting with a client in-person.
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