Breaching confidentiality is a serious issue and must be protected at all cost.

I was looking at the Rule of Professional Conduct Rule 1.6, the confidentiality rule, and I am curious if my fee letter with a client is confidential and within the privilege. Is it?

Samuel C. Stretton. Samuel C. Stretton.

The attorney-client privilege, which is statutory in nature and also has a common law basis, has been broadened by Rule of Professional Conduct 1.6. Now, a lawyer cannot reveal any information relating to the representation of the client. There are exceptions under Rule 1.6(c) involving threats of death or serious bodily harm, to prevent a client from committing a crime that could result in substantial injury to the financial interest or property of another, to prevent or mitigate the consequences of a client's criminal or fraudulent act in which the lawyer's services had been used, to establish a claim or defense on behalf of the lawyer, controversy between the lawyer and the client, or to secure legal advice about the lawyer's compliance with the Rules of Professional Conduct. In other words, if a lawyer seeks the advice of someone else about the Rules of Conduct, there can be an exception to the rule to allow a lawyer to defend themselves by saying they sought advice on the issue.

But there are other exceptions that aren't necessarily well known. The question of fee agreements has arisen in the past, but at least under Pennsylvania law, a fee agreement is not normally protected by the attorney-client privilege, nor is billing normally protected unless the release would set forth some attorney-client confidential information. Despite that, a lawyer perhaps should object because it is hard to figure out what the relevance of a fee agreement might be in most cases where a lawyer is a party. The lack of protection of the fee agreements is long-standing. An example is the case of Montgomery County v. Microvote, 175 F.3d 296 (3rd Circuit 1999), which stated, "However, the fee agreement is not privileged. The attorney/client privilege does not shield fee arrangements." In essence, a fee agreement is not by itself protected unless its disclosure would indicate the client was involved in criminal activity. The fee agreement does not come within the ambit of the work product privilege and, of course, is not the opinion of a nontestifying expert.