Ethics-Governance: Article: http://www.wsba.org/media/publications/barnews/archives/2001/aug-01-ethics.htm

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http://www.wsba.org/media/publications/barnews/archives/2001/aug-01-ethics.htm Ethics and the Law: Confidentiality in the ADR Process by Barrie Althoff, WSBA Chief Disciplinary Counsel. Opinions expressed herein are the author's and are not official or unofficial WSBA positions. The assurance of confidentiality is essential to both a client-lawyer relationship and the success of alternative dispute resolution, particularly mediation. Without it, clients will not speak frankly and openly with their lawyers, and ADR participants will not disclose matters which may lead to resolution but which, if the ADR does not succeed, may harm them in subsequent proceedings. A lawyer participating in ADR has a duty to maintain confidences and secrets. The source and extent of that duty depends on the role played by the lawyer. This article reviews a lawyer's duty of confidentiality (and, to a limited extent, the lawyer's duty to avoid conflicts of interest) in three roles: lawyer as client representative or advocate, lawyer as third-party neutral, and lawyer as a party in ADR proceedings. The article then briefly looks at the difficult ethical issues arising when a lawyer combines roles. Lawyer as Client Representative or Advocate A lawyer representing as an advocate a client participant in ADR has a duty of confidentiality as to the information the lawyer obtains in the representation. The lawyer's duty is (a) an ethical duty derived from the Washington Supreme Court's Rules of Professional Conduct (RPCs), (b) a statutory duty derived from the statutory attorney-client privilege, and (c) a statutory duty derived from applicable ADR statutes. Full Article: http://www.wsba.org/media/publications/barnews/archives/2001/aug-01-ethics.htm


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