[1] This Rule governs the disclosure by a
lawyer of information relating to the representation of a
client during the lawyer's representation of the client. See
Rule 1.18 for the lawyer's duties with respect to
information provided to the lawyer by a prospective client,
Rule 1.9(c)(2) for the lawyer's duty not to reveal
information relating to the lawyer's prior representation of
a former client and Rules 1.8(b) and 1.9(c)(1) for the
lawyer's duties with respect to the use of such information
to the disadvantage of clients and former clients.
[2] A fundamental principle in the
client-lawyer relationship is that, in the absence of the
client's informed consent, the lawyer must not reveal
information relating to the representation. See Rule 1.0(e)
for the definition of informed consent. This contributes to
the trust that is the hallmark of the client-lawyer
relationship. The client is thereby encouraged to seek legal
assistance and to communicate fully and frankly with the
lawyer even as to embarrassing or legally damaging subject
matter. The lawyer needs this information to represent the
client effectively and, if necessary, to advise the client
to refrain from wrongful conduct. Almost without exception,
clients come to lawyers in order to determine their rights
and what is, in the complex of laws and regulations, deemed
to be legal and correct. Based upon experience, lawyers know
that almost all clients follow the advice given, and the law
is upheld.
[3] The principle of client-lawyer
confidentiality is given effect by related bodies of law:
the attorney-client privilege, the work product doctrine and
the rule of confidentiality established in professional
ethics. The attorney-client privilege and work-product
doctrine apply in judicial and other proceedings in which a
lawyer may be called as a witness or otherwise required to
produce evidence concerning a client. The rule of
client-lawyer confidentiality applies in situations other
than those where evidence is sought from the lawyer through
compulsion of law. The confidentiality rule, for example,
applies not only to matters communicated in confidence by
the client but also to all information relating to the
representation, whatever its source. A lawyer may not
disclose such information except as authorized or required
by the Rules of Professional Conduct or other law. See also
Scope.
[4] Paragraph (a) prohibits a lawyer from
revealing information relating to the representation of a
client. This prohibition also applies to disclosures by a
lawyer that do not in themselves reveal protected
information but could reasonably lead to the discovery of
such information by a third person. A lawyer's use of a
hypothetical to discuss issues relating to the
representation is permissible so long as there is no
reasonable likelihood that the listener will be able to
ascertain the identity of the client or the situation
involved.
Authorized Disclosure
[5] Except to the extent that the
client's instructions or special circumstances limit that
authority, a lawyer is impliedly authorized to make
disclosures about a client when appropriate in carrying out
the representation. In some situations, for example, a
lawyer may be impliedly authorized to admit a fact that
cannot properly be disputed or to make a disclosure that
facilitates a satisfactory conclusion to a matter. Lawyers
in a firm may, in the course of the firm's practice,
disclose to each other information relating to a client of
the firm, unless the client has instructed that particular
information be confined to specified lawyers.
Disclosure Adverse to Client
[6] Although the public interest is
usually best served by a strict rule requiring lawyers to
preserve the confidentiality of information relating to the
representation of their clients, the confidentiality rule is
subject to limited exceptions. Paragraph (b)(1) recognizes
the overriding value of life and physical integrity and
permits disclosure reasonably necessary to prevent
reasonably certain death or substantial bodily harm. Such
harm is reasonably certain to occur if it will be suffered
imminently or if there is a present and substantial threat
that a person will suffer such harm at a later date if the
lawyer fails to take action necessary to eliminate the
threat. Thus, a lawyer who knows that a client has
accidentally discharged toxic waste into a town's water
supply may reveal this information to the authorities if
there is a present and substantial risk that a person who
drinks the water will contract a life-threatening or
debilitating disease and the lawyer's disclosure is
necessary to eliminate the threat or reduce the number of
victims.
[7] Paragraph (b)(2) is a limited
exception to the rule of confidentiality that permits the
lawyer to reveal information to the extent necessary to
enable affected persons or appropriate authorities to
prevent the client from committing a crime or fraud, as
defined in Rule 1.0(d), that is reasonably certain to result
in substantial injury to the financial or property interests
of another and in furtherance of which the client has used
or is using the lawyer's services. Such a serious abuse of
the client-lawyer relationship by the client forfeits the
protection of this Rule. The client can, of course, prevent
such disclosure by refraining from the wrongful conduct.
Although paragraph (b)(2) does not require the lawyer to
reveal the client's misconduct, the lawyer may not counsel
or assist the client in conduct the lawyer knows is criminal
or fraudulent. See Rule 1.2(d). See also Rule 1.16 with
respect to the lawyer's obligation or right to withdraw from
the representation of the client in such circumstances, and
Rule 1.13(c), which permits the lawyer, where the client is
an organization, to reveal information relating to the
representation in limited circumstances.
[8] Paragraph (b)(3) addresses the
situation in which the lawyer does not learn of the client's
crime or fraud until after it has been consummated. Although
the client no longer has the option of preventing disclosure
by refraining from the wrongful conduct, there will be
situations in which the loss suffered by the affected person
can be prevented, rectified or mitigated. In such
situations, the lawyer may disclose information relating to
the representation to the extent necessary to enable the
affected persons to prevent or mitigate reasonably certain
losses or to attempt to recoup their losses. Paragraph
(b)(3) does not apply when a person who has committed a
crime or fraud thereafter employs a lawyer for
representation concerning that offense.
[9] A lawyer's confidentiality
obligations do not preclude a lawyer from securing
confidential legal advice about the lawyer's personal
responsibility to comply with these Rules. In most
situations, disclosing information to secure such advice
will be impliedly authorized for the lawyer to carry out the
representation. Even when the disclosure is not impliedly
authorized, paragraph (b)(4) permits such disclosure because
of the importance of a lawyer's compliance with the Rules of
Professional Conduct.
[10] Where a legal claim or disciplinary
charge alleges complicity of the lawyer in a client's
conduct or other misconduct of the lawyer involving
representation of the client, the lawyer may respond to the
extent the lawyer reasonably believes necessary to establish
a defense. The same is true with respect to a claim
involving the conduct or representation of a former client.
Such a charge can arise in a civil, criminal, disciplinary
or other proceeding and can be based on a wrong allegedly
committed by the lawyer against the client or on a wrong
alleged by a third person, for example, a person claiming to
have been defrauded by the lawyer and client acting
together. The lawyer's right to respond arises when an
assertion of such complicity has been made. Paragraph (b)(5)
does not require the lawyer to await the commencement of an
action or proceeding that charges such complicity, so that
the defense may be established by responding directly to a
third party who has made such an assertion. The right to
defend also applies, of course, where a proceeding has been
commenced.
[11] A lawyer entitled to a fee is
permitted by paragraph (b)(5) to prove the services rendered
in an action to collect it. This aspect of the rule
expresses the principle that the beneficiary of a fiduciary
relationship may not exploit it to the detriment of the
fiduciary.
[12] Other law may require that a lawyer
disclose information about a client. Whether such a law
supersedes Rule 1.6 is a question of law beyond the scope of
these Rules. When disclosure of information relating to the
representation appears to be required by other law, the
lawyer must discuss the matter with the client to the extent
required by Rule 1.4. If, however, the other law supersedes
this Rule and requires disclosure, paragraph (b)(6) permits
the lawyer to make such disclosures as are necessary to
comply with the law.
[13] A lawyer may be ordered to reveal
information relating to the representation of a client by a
court or by another tribunal or governmental entity claiming
authority pursuant to other law to compel the disclosure.
Absent informed consent of the client to do otherwise, the
lawyer should assert on behalf of the client all
nonfrivolous claims that the order is not authorized by
other law or that the information sought is protected
against disclosure by the attorney-client privilege or other
applicable law. In the event of an adverse ruling, the
lawyer must consult with the client about the possibility of
appeal to the extent required by Rule 1.4. Unless review is
sought, however, paragraph (b)(6) permits the lawyer to
comply with the court's order.
[14] Paragraph (b) permits disclosure
only to the extent the lawyer reasonably believes the
disclosure is necessary to accomplish one of the purposes
specified. Where practicable, the lawyer should first seek
to persuade the client to take suitable action to obviate
the need for disclosure. In any case, a disclosure adverse
to the client's interest should be no greater than the
lawyer reasonably believes necessary to accomplish the
purpose. If the disclosure will be made in connection with a
judicial proceeding, the disclosure should be made in a
manner that limits access to the information to the tribunal
or other persons having a need to know it and appropriate
protective orders or other arrangements should be sought by
the lawyer to the fullest extent practicable.
[15] Paragraph (b) permits but does not
require the disclosure of information relating to a client's
representation to accomplish the purposes specified in
paragraphs (b)(1) through (b)(6). In exercising the
discretion conferred by this Rule, the lawyer may consider
such factors as the nature of the lawyer's relationship with
the client and with those who might be injured by the
client, the lawyer's own involvement in the transaction and
factors that may extenuate the conduct in question. A
lawyer's decision not to disclose as permitted by paragraph
(b) does not violate this Rule. Disclosure may be required,
however, by other Rules. Some Rules require disclosure only
if such disclosure would be permitted by paragraph (b). See
Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other
hand, requires disclosure in some circumstances regardless
of whether such disclosure is permitted by this Rule. See
Rule 3.3(c).
Acting Competently to Preserve Confidentiality
[16] A lawyer must act competently to
safeguard information relating to the representation of a
client against inadvertent or unauthorized disclosure by the
lawyer or other persons who are participating in the
representation of the client or who are subject to the
lawyer's supervision. See Rules 1.1, 5.1 and 5.3.
[17] When transmitting a communication
that includes information relating to the representation of
a client, the lawyer must take reasonable precautions to
prevent the information from coming into the hands of
unintended recipients. This duty, however, does not require
that the lawyer use special security measures if the method
of communication affords a reasonable expectation of
privacy. Special circumstances, however, may warrant special
precautions. Factors to be considered in determining the
reasonableness of the lawyer's expectation of
confidentiality include the sensitivity of the information
and the extent to which the privacy of the communication is
protected by law or by a confidentiality agreement. A client
may require the lawyer to implement special security
measures not required by this Rule or may give informed
consent to the use of a means of communication that would
otherwise be prohibited by this Rule.
Former Client
[18] The duty of confidentiality
continues after the client-lawyer relationship has
terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the
prohibition against using such information to the
disadvantage of the former client.