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By: Paul Boylan
The Supreme Judicial Court for the Commonwealth of Massachusetts recently confirmed what it means for something to be confidential. The case is In the matter of Attorney Michael J. Kelley, SJC-13145, March 16, 2022.
Kelley confirms the long-standing principle in many jurisdictions that that protection of confidential information is not limited to trade secrets or to commercially priceless data or systems. . Kelley confirms that what counts as confidential includes all material of any sort which is not “commonly known.” The test is whether information is in fact broadly known, not whether it is knowable. The fact that information is available in a public record is not the test and not dispositive. Instead, the focus is on how many people in the relevant community, trade, field, or profession actually have learned the information.
This rule is applicable in numerous jurisdictions and is in no way new or novel. See Rule 1.6 ABA Model rules of Professional Conduct, Comment 3: The rule of client-lawyer confidentiality applies “not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source; Confidential information includes all information about the client from any source, even if the information may be obtained from other sources. Mallen et al., Legal Malpractice (3d ed. 1990), § 11.5; see In re Jordan, 12 Cal. 3d 575, 580 (1974) (a published law review delivered to an attorney by the client was confidential until used by the lawyer).
The broad view of confidentiality in Kelley, if properly used , is a crucial tool to protect all of your private or sensitive information whether you need to commence litigation or if you are unable to avoid being sued.
In either situation the Opinion in Kelley and similar authorities nationwide provide a very strong and useful tool in favor of broad protection of private information of any sort.
It follows that almost any private fact is potentially confidential and able to be protected from disclosure during discovery. Confidentiality protections are potentially available in all high- stakes disputes such as business litigation involving a major deal gone wrong and in all other civil litigation.
If information about the client is private at the relevant date, it can be protected from prying eyes during discovery if an attorney acts diligently and promptly. This is often crucial because an adverse party with a weak case may want to use or in fact use unprotected discovery to make embarrassing disclosures improperly and possibly secretively by misuse of the discovery materials your client, in due course, is required to deliver.
To avoid that, an attorney should promptly seek a confidentiality agreement or a Court Order to accomplish protection. Confidentiality protections are very frequently agreed to by counsel and, if not agreed, very often ordered by a Court. The text of the Kelley Opinion , the authorities cited above, or authority in your state can be used to persuade the Court to embrace a broad, common sense, view of confidentiality. The common sense language used in Kelley can be imported into the text of the agreement or the requested Order with or without citation to the Kelley Opinion.
Confidentiality agreements are crucial to be sure that parties in litigation will avoid new harms caused by misuse of discovery by an adverse party.
Confidentiality stipulations or Orders are strictly enforced. Because violations are severely punished, a Confidentiality Order will very likely deter opposing counsel and the adverse party from improper disclosure of your documents or discovery disclosures to non-parties, for example. in concealed efforts to elicit testimony adverse to you.
Discovery prior to trial is mandatory, but what is disclosed need not be made public during the often lengthy period of time allowed for discovery. Trial often does not commence until months or years after a case is commenced. Many cases never go to trial.. Protecting confidentiality of all not public information to the maximum extent prior to trial is sound practice and good business.
The broad, common sense meaning of confidentiality affirmed in Kelley provides all litigants with a very useful tool to protect personal and business privacy and to prevent disclosure of sensitive not well known information of any sort, at least during the discovery phase of any civil action.
This discussion does not address the many issues presented when an attorney may be required to disclose client confidences. Confidentiality of materials at trial raises issues also not addressed here.
Paul G. Boylan is a Partner in the Boston Office of FMG. His practice is primarily in business litigation.