Confidential information

Key Takeaways

• Confidential information in Washington is defined by a five-part test in RCW 18.86.010(9), and information must satisfy every part to qualify.
• The duty not to disclose confidential information survives the end of the agency relationship under RCW 18.86.070(2)(b).
• The only stated exception is disclosure under subpoena or court order, per RCW 18.86.040(1)(d) and RCW 18.86.050(1)(d).
• Confidentiality never covers a known material fact, because RCW 18.86.030(1)(d) makes that disclosure duty one the parties may not waive.

What It Means

Confidential information is a defined legal category in Washington, not a general instinct to keep a client's business quiet. RCW 18.86.010(9) sets out five tests, and information has to clear all five before a broker is barred from sharing it. The information must have been acquired during the course of the agency relationship. The principal must reasonably expect it to be kept confidential. The principal must not have disclosed it or authorized its disclosure to third parties. Revealing it must operate to the principal's detriment. And the principal must not be someone who would personally be obligated to disclose it to the other party.

That fifth test does the work students most often skip. It means a broker cannot use confidentiality to bury something the client would have to reveal anyway. A seller who knows the foundation is failing does not make that fact confidential by mentioning it privately.

Because the tests are cumulative, information that fails any single one of them is unprotected, whatever the client believed when they said it out loud.

How It Works in Washington

The definition lives in RCW 18.86.010(9), and the duty is written into each agent role separately. RCW 18.86.040(1)(d) directs a seller's agent not to disclose any confidential information from or about the seller, except under subpoena or court order, even after termination of the agency relationship. RCW 18.86.050(1)(d) states the same rule for a buyer's agent, and RCW 18.86.060(2)(d) applies it to a limited dual agent serving both parties, so a Dual Agency arrangement narrows what a broker may advocate without loosening what a broker may repeat.

Duration is settled by RCW 18.86.070(2)(b). After an agency relationship ends, a broker owes no further duty except to account for money and property received during the relationship and to not disclose confidential information. Loyalty stops at termination. Confidentiality does not.

One duty always outranks it. RCW 18.86.030(1)(d) requires every broker to disclose all existing material facts known to the broker and not apparent or readily ascertainable to a party, and RCW 18.86.030(1) says those duties may not be waived. A Material Fact cannot be reclassified as confidential by agreement. RCW 18.86.110 frames the whole chapter, making these Statutory Duties rather than common law fiduciary duties.

In daily practice the promise gets explained out loud long before it is ever tested. The school's walkthrough of the first buyer journey shows where that conversation lands when a buyer signs on.

Example

Broker Luis is the seller's agent for the Ortega family on a Bellingham house listed at $389,000. During the listing appointment the Ortegas tell him two things in confidence. First, they are divorcing and will take as little as $362,000 to be done with it. Second, the basement flooded twice last winter, and they ask Luis to keep that quiet.

The $362,000 floor, which is $27,000 under the list price, clears all five tests in RCW 18.86.010(9). Luis may not tell a buyer's broker, and he still may not tell anyone after the listing expires, because RCW 18.86.070(2)(b) keeps that duty running. The flooding is the opposite result. It fails the fifth test, since a seller would personally be obligated to disclose it, and RCW 18.86.030(1)(d) independently requires Luis to disclose material facts he knows to all parties. The Ortegas' request does not convert a known defect into confidential information.

Common Mistakes and Exam Traps

• All five tests in RCW 18.86.010(9) must be met, so a single failed test leaves the information unprotected no matter how private the client considered it.
• A client's instruction to stay quiet about a known defect creates nothing, because RCW 18.86.030(1)(d) makes material fact disclosure a duty the parties may not waive.
• Confidentiality outlives the agency relationship, which separates it from loyalty and the other duties that end under RCW 18.86.070(2).
• The statutory exception is a subpoena or a court order, not a broker's judgment that disclosing something would help the transaction close.