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Confidentiality vs. Disclosure: When Can You, Should You, Must You Tell?

James Moore, Proceedings of 48th Annual Rocky Mountain Mineral Law Institute (2002)

Managing the protection and disclosure of sensitive information is important to every business. A cornerstone of the lawyer's responsibility in advising business clients is, on the one hand, preservation of client confidences and, on the other, advising the client as to whether and how to disclose sensitive information to regulatory agencies and others. Over the past several years in the field of environmental regulation, new state laws and federal policies have been promulgated to encourage the voluntary disclosure of regulatory violations. Ethical considerations may, in very limited circumstances, also encourage disclosures adverse to a client's interest.

This chapter addresses the lawyer's duties with regard to managing a client's confidential information. Special attention is given to when and under what circumstances voluntary disclosure of sensitive information to regulatory agencies is appropriate. The numerous state statutes and state and federal policies bearing on the issue are discussed. Ethical considerations-including the American Bar Association (ABA) Model Rules of Professional Conduct as well as consultants' ethical codes-are discussed.