Why Do Privilege Disputes Never Seem to Focus on Lawyers' Ethics Confidentiality Duty?

April 14, 2021

Every lawyer knows the incredible scope and strength of their ethics confidentiality duty. More than any other profession, lawyers must maintain the absolute secrecy of nearly all information relating to their clients. But lawyers don't point to that duty when resisting discovery of their clients' documents and testimony — instead relying on the narrower evidentiary privilege or work product doctrine. Why is that?

In Pace-O-Matic, Inc. v. Eckert Seamans Cherin & Mellott, LLC, a client suing Eckert Seamans for breach of fiduciary duty sought documents from the law firm. Civ. A. No. 1:20-cv-00292, 2021 U.S. Dist. LEXIS 28175 (M.D. Pa. Feb. 16, 2021), rev'd in part on other grounds, 2021 U.S. Dist. LEXIS 66395 (M.D. Pa. Apr. 6, 2021). The court bluntly rejected the firm's argument "that the requested discovery is barred by [Pennsylvania ethics] Rule 1.6." Id. at *11. The court noted that "this is a discovery dispute in a federal civil action, not an ethical complaint in disciplinary or disqualification proceedings." Id. at *11-12. Thus, substantive law governed the discovery dispute. The court reminded Eckert Seamans that "[i]ndeed, the [ethics confidentiality] Rule itself contemplates as much, expressly providing" in Pennsylvania Rule 1.6(c)(8) that lawyers may disclose protected confidential client communication "to comply with other law or court order." Id. at *12-13.

In discovery contexts and in court, lawyers fulfill their ethics confidentiality duty by relying on evidentiary protections. If they lose, the ethics rules provide a "safe harbor" allowing them to disclose their clients' confidential information "to comply with other law or court order."

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