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San Diego Law Review

Document Type

Article

Abstract

This Article offers an alternative dialogue approach. Rather than view the issue of explaining confidentiality either as a strategy for gaining client trust or an obligation necessary to comply with certain legal obligations, we propose understanding it as a key element in creating a relationship of dialogue grounded in honesty and mutual respect.

In doing so, we build on the work of the late Fred Zacharias, whose scholarship in this area provides both pathbreaking empirical insights and unwavering commitment to respecting client dignity. Among Zacharias’s contributions are his oft-cited empirical study suggesting that lawyers wrongly assume that clients would not share confidential information if clients accurately understood that exceptions to confidentiality exist and his analytic insight that lawyers’ claim to mislead clients for their own good reveals a deep distrust of clients’ capacity to participate in dialogue with the lawyer. Zacharias viewed this perspective as reprehensible disregard for the client’s basic human dignity. Although his two articles on Rethinking Confidentiality are most on point, these concerns are evident throughout the exceptional body of work he contributed to professional responsibility scholarship.

We also acknowledge our debt to Clark Cunningham, whose article How To Explain Confidentiality? is the model for our effort to investigate lawyer-client conversations regarding confidentiality and to categorize commentators’ approaches to explaining confidentiality, and the inspiration for us to offer our own dialogue approach. Although we do propose a framework for explaining confidentiality, we remain mindful of Cunningham’s advice that offering a “set of ‘how to’ directions” poses the danger of undervaluing the profound difficulty of the task.

In Part II, the Article explains the mandatory and discretionary exceptions to confidentiality under the duty of confidentiality and the attorney-client privilege, examines lawyers’ reasons for failing to explain these exceptions honestly, and identifies the legal and moral considerations requiring candor to the client on this topic. Part III describes the three alternatives commentators have proposed for explaining confidentiality—that lawyers should agree to keep information confidential, give a general explanation, or give a detailed disclosure. In Part IV, the Article proposes a new way to discuss confidentiality. It takes a middle ground between the general and detailed approaches in order to encourage an honest and trusting dialogue between lawyer and client.

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