Legal Ethics: Confidentiality and Taking Remedial Measures


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About This Course

Confidentiality is one of the three main fiduciary duties a lawyer owes to their client. Without strict confidentiality, clients may not feel free to discuss sensitive matters with their lawyer. This can sometimes clash with the lawyer’s obligations of candor to the tribunal when evidence that has already been offered turns out to be false.

There are significant variations among the jurisdictions on how to deal with evidence that the lawyer discovers is false. Two of the largest states, New York and California, have very different ways of dealing with this situation. Disclosing confidential information unnecessarily is a serious ethics violation but so is the failure to take reasonable remedial measures when required. Therefore, it is critical to determine when these obligations exist, and this often includes an analysis of whether evidence offered is material as well as determining whether the body that received the information is a tribunal in the first place.

Furthermore, with the multijurisdictional nature of modern practice and the differences among the rules, it is important to first determine which jurisdiction’s rules apply. And especially since clients might feel betrayed if a lawyer is obligated to make a correction against their wishes, it is important to consider the current state of the rules and whether changes are warranted.

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