Q: How can I get privacy when relating my case to a prospective lawyer? So they can't share with anyone after I leave?

I met with a lawyer after being referred though the Oregon Bar Association referral line and after we were done talking I asked that what I shared be kept confidential. He told me that he was under no obligation whatsoever to keep my information confidential. He said that a consultation even if I pay for it didn't obligate him to keep confidentiality.

1 Lawyer Answer
Greg Freeze
Greg Freeze
  • Estate Planning Lawyer
  • Port Townsend, WA
  • Licensed in Oregon

A: I can't speak reliably for the actual Oregon Bar Association referral line (that communication is probably not a confidential communication subject to the attorney/client privilege), but the communication with an attorney is subject to the confidential communication privilege.

ORS 40.225 codifies the rules.

“'Client' means: (A) A person, public officer, corporation, association or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer." Rule 503.

The key part is that you consulted with an attorney "with a view to obtaining ...." That's what you did. So, as a starting point, you have a privilege that is yours to claim. It's claimed by you. You are the person with the power. That's except if there is an exception. So here are the exceptions:

(4) There is no privilege under this section:

(a) If the services of the lawyer or lawyer referral service were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

(b) As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;

(c) As to a communication relevant to an issue of breach of duty by the lawyer or lawyer referral service to the client or by the client to the lawyer or lawyer referral service;

(d) As to a communication relevant to an issue concerning an attested document to which the lawyer or lawyer referral service is an attesting witness; or

(e) As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

ORS 40.225

I remember some cases that have carved out a few more exceptions, but without hearing the facts, I wouldn't remember those extra exceptions. I remember one having to do with taxes and reporting client names under an audit of the attorney by the IRS (e.g., under-reporting fees received audit). There are also ethics opinions on the topic.

What's a bit distressing is your comment about even if you paid for legal assistance. While this isn't the point of demarcation, it does point out the absurdity of the statement, if only as a "come on...really?"

You'll find most attorneys put the confidentiality statement right in the Letter of Representation.

There is a distinction between attorney/client privilege and confidential communication, but the majority of people just blur the two topics together. If you are talking with your attorney in a situation where you can be overheard, you can ruin the confidential communication piece. So chatting at a restaurant is dangerous to that privilege.

Despite this post, I still will throw my standard disclaimer on it. Best of luck.

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