What You Should Know About Attorney-Client Confidentiality
The New York Rules of Professional Conduct, which govern attorneys, are very clear: the confidences of a client may not be disclosed absent the permission of the client. That includes the past commission of a crime. If you are seeking a divorce or need criminal defense representation, you are entitled to complete trust in that attorney-client confidentiality.
As a New York divorce and criminal defense lawyer with more than 35 years of experience, I take the confidentiality of my clients very seriously. I know that there is nothing more alarming to potential clients than the fear that the information shared in the confines of the attorney’s office will not be kept secret. I have a successful track record for also protecting my clients’ privacy, including many high net worth and high-profile clients.
Protecting Your Privacy
Under New York law, matrimonial files are confidential and sealed. Under certain limited circumstances you can also petition the court to label your case as “Anonymous v. Anonymous.”
Although in my 35 years as a New York trial attorney, I have enjoyed a healthy share of media exposure; my oath as a lawyer and my obligation to you as my client places first and foremost in my personal credo. Loyalties should never be divided or compromised, so my consistent answer to media personalities who seek to discuss high profile cases is: “Sorry. No comment.” I regard the confidence that high-powered or well-known clients have placed in me as a privilege and an honor that it is not ever bittersweet.
There are at least four players in every divorce case: the two spouses and the two lawyers. In any case, at any time, one of those four might become a loose cannon, or information might slip out. If that happens, you can benefit by having my firm on your team. Poise is very important. I have successfully dealt with the press. If you intelligently decide to go past the “no comment” response to the press, I have the experience to help you achieve our objective and limit the bad publicity.
Legal Requirement Of Confidentiality
Formal attorney/client relationship is not necessarily required:
• All disclosures made to an attorney in expectation of a lawyer-client relationship are confidential whether or not you retain that attorney.
• Privileges, including the Fifth Amendment privilege, are also available in divorce actions. But a divorce action is a civil proceeding. If you claim a privilege on the witness stand, the court may draw a negative inference (rule against you). In a child custody case the physician-patient privilege is deemed waived when the parent seeks custody. Further, judges are mandatory reporters. So, if you do not settle your case, and information about illegal financial transactions or fraudulent tax returns gets aired in open court, your file may be sent to the IRS or some other prosecutorial agency.
• Confidentiality of divorce files: Divorce proceedings are confidential and the files are sealed. Only the spouses and their attorneys can get access to the files for at least 100 years. You or your spouse may choose to waive that confidentiality, but you should understand at the outset that your secrets and private affairs remain confidential.
• Trade secrets: Frequently, businesses have trade secrets and sensitive information that should not be disclosed. It is customary to request and obtain a confidentiality agreement before any sensitive financial information is disclosed. This will help you be assured that everything possible is being done to protect your business.
• No pretrial disclosure on custody: In New York City, Long Island and most of the Hudson Valley, the courts do not permit any pretrial disclosure on nonfinancial issues (like child custody). This means that neither you nor your spouse can be required to testify about sensitive personal information at a pretrial deposition or in written interrogatories.