Confidentiality Policy:
PRESERVATION OF CLIENT CONFIDENCES AND CLIENT FILES
Clients are entitled to the protection of their confidences and secrets. The scope of those protections is defined by the Rules of Professional Conduct adopted by the Washington Supreme Court found at Rule 1.6and by the attorney-client privilege codified in RCW 5.60.060(2), and by tribal law and tribal court rules. All staff with access to client confidences or secrets must preserve them against unauthorized disclosure.
Client confidences and secrets.
"Confidence" is defined in the Rules of Professional Conduct as "information protected by the attorney client privilege…" The attorney-client privilege is codified in RCW 5.60.060(2), which provides as follows: "An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment." For the attorney-client privilege to apply, clients must believe, at the time communications are made, that they are consulting lawyers, either directly or through agents, in their professional capacities – that is, for the purpose of getting legal advice or representation.
"Secret" is defined as "other information (i.e., other than confidences) gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client."
Any information received from or about a client, or from a person who consults program staff for the purpose of getting legal advice or representation, should be presumed to be either a confidence or a secret and should not be disclosed without consent, unless a specific exemption in the Rules applies. Clients may, by implication, consent to disclosures for the purpose of pursuing the objectives of the representation. No such implication is warranted, however, where disclosure would not further the client’s objectives.
Some specific examples:
Client names and addresses: The identity of clients, and their names and addresses, are (at least) secrets and should not be disclosed without consent. When staff represents a client in litigation, the client may, by implication, consent to necessary disclosures in the context of the litigation. Unless representation of a client is a matter of public record or the client has otherwise authorized disclosure, the appropriate response to an inquiry about whether we represent the client is: "we cannot provide that information."
Statistical information: Certain statistical information, preserving client anonymity, that the program is required to provide as a condition of its funding may be provided. Decisions about the provision of such information are made by the director in consultation with the Board of Directors.
Client files: Client files may not be reviewed by board members, outside monitors or others beyond the scope of the attorney-client privilege. Board members may review client files only as necessary to discharge obligations under the client grievance policy.
Lawyer work product: The work product of lawyers – their "mental impressions, conclusions, opinions, or legal theories" concerning litigation (CR 26(b)(4)) – is a special kind of secret that should be preserved.
Discussions with non-program lawyers and other resource people: The prohibition against disclosure of client confidences and secrets applies to disclosure to others who happen to be lawyers or other experts. Furthermore, casual disclosures to such people may compromise the attorney-client privilege. So, it would be improper, for example, to have an outsider present when client confidences or secrets would be discussed.
With a client’s consent, an outside lawyer or other expert may be formally consulted and brought within the scope of the attorney-client privilege. Alternatively, consultation may proceed on the basis of hypothetical facts without disclosing client confidences or secrets.
Precautions against inappropriate disclosure.
All staff should be vigilant against inadvertent disclosure of client confidences or secrets. In case of any doubt, disclosure should be deferred until the Board of Directors can be consulted using a hypothetical example.
Preservation of requests for client files.
Client files should be kept in file drawers that are locked. The backup of computer entries will protect the loss of client information from loss by fire or other hazard. Client files should be retained for at least seven years after they are closed.
When a client requests his or her file, copies of all documents given to the client should be made and retained, and a cover letter itemizing the documents given to the client should, ordinarily, be provided. Before documents other than pleadings or correspondence (e.g., lawyer’s notes) are given to the client, Director should consult with the Board of Directors about whether to disclose.
If someone other than the client requests access to the contents of a file, a satisfactory showing of authorization by the client should be required and retained or recorded in the file. A statement signed by the client with a signature that matches one in the file, a telephone statement by the client in response to a call which we have made to the client’s number, or an affidavit from the client would be a satisfactory showing.
Client identity disclosed to the public
Before clients make a public appearance on behalf of the program or the agency uses identifiable photographs or videotapes of clients, the Director must obtain a written authorization from each client to disclose their identity to the public in whatever manner. |
