RULE 1.6 CONFIDENTIALITY OF INFORMATION
(a) A lawyer shall not reveal, or use to the disadvantage of a
client, information relating to the
representation of the client unless required or permitted to do so by this rule
the client consents, the
disclosure is impliedly authorized in order to carry out the representation, or the disclosure is
required by paragraph (b) or permitted by paragraph (c). The duty of confidentiality continues
after
the lawyer-client relationship has terminated. When such information is authorized
by this rule to
be revealed or used, the revelation or use shall be no greater than the lawyer reasonably believes
necessary to the purpose. Such revelation or use is:
(a) (b) A lawyer is required to
reveal information relating to the representation of a client to the
extent the lawyer believes reasonably necessary to prevent the client from
committing an act that
the lawyer believes is likely to result in imminent reasonably certain death or
imminent substantial
bodily harm;.
(c) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(b) permitted when the client consents after
consultation;
(c) permitted when impliedly authorized in order to carry out the
representation;
(d) (1) permitted to the extent
the lawyer reasonably believes necessary to prevent the client
from committing a criminal crime or fraudulent act
fraud that the lawyer reasonably believes
is likely to result in non-imminent death, non-imminent substantial bodily harm, or
substantial injury or harm to the financial interests or property of another is
reasonably
certain to result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer's services;
(2) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of crime or fraud in the furtherance of which the client has used the lawyer's services;
(3) to secure legal advice about the lawyer's compliance with these Rules;
(e)(4)permitted to the extent the lawyer reasonably believes necessaryto establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(f) permitted, except as limited by Rule 3.3(c), to prevent or to
rectify the consequences of a client's
criminal or fraudulent act in the furtherance of which the lawyer's services had been used
without
the lawyer's knowledge;
(g) (5) permitted to
comply with other law or a court order; and.
(h) permitted when information has become generally
known.
Comment
The observance of the ethical obligation of a lawyer to hold inviolate confidential
information of
the client not only facilitates the full development of facts essential to proper representation of
the
client but also encourages people to seek early legal assistance. Almost without exception,
clients
come to lawyers in order to determine what their rights are and what is, in the maze 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. In order to foster the continued
willingness
of clients to seek early counsel, to reveal freely to counsel all facts, and thus to assure that most
conduct will be lawful, the law recognizes that the client's confidences must be protected from
disclosure or improper use.
[1] This Rule governs the disclosure by a lawyer of information relating to the representation of a client during and after 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 potential client and Rules 1.8(b) and 1.9(c) 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 the lawyer
maintain
confidentiality of information relating to the representation must not reveal
information relating to
the representation without the client's consent. While it is not a requirement, it is a preferable
practice to obtain the client's consent in writing when consent is given. 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] This principle of lawyer-client confidentiality is also
given effect in by related law, such as the
attorney-client privilege, and the work product doctrine and the
rule of confidentiality established
in professional ethics. The attorney-client privilege and work-product doctrine
applies 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
lawyer-client confidentiality
applies in situations other than those where evidence is sought from the lawyer through
compulsion
of law. The confidentiality This rule applies not merely 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 or use to the disadvantage of a client such information except
as authorized or
required or permitted by these Rules 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.
Impliedly Authorized Disclosure
[5] A 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. For example, a lawyer may disclose information in litigation by
admitting a fact
that cannot properly be disputed or in negotiation by making a disclosure that facilitates a
satisfactory conclusion. Specific instructions from the client or special circumstances may limit
the
lawyer's implied authority to make disclosures 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
To the extent a client is aware that there are circumstances in which a lawyer is
required or permitted
to disclose the client's intentions, the client will be inhibited from revealing facts which would
enable the lawyer to counsel against, and perhaps therefore effectively prevent, a course of
action
which would violate the rights of others. The public is thus better protected if full and open
communication by the client is encouraged than if it is inhibited. The general rule of
confidentiality
is accepted because it provides that encouragement. In some circumstances, however, important
as
the principle of confidentiality is, it must give way to other interests; there are situations in
which
a lawyer must reveal information relating to representation of the client, and other situations in
which a lawyer must be free to reveal such information.
A lawyer is required to reveal information the lawyer believes necessary to prevent
the client from
committing an act the lawyer believes is likely to result in imminent death or imminent
substantial
bodily harm. This requirement exists even though the lawyer can never be certain of the client's
intentions.
A lawyer must have discretion to reveal information the lawyer reasonably believes
necessary to
prevent the client from committing criminal or fraudulent acts the lawyer reasonably believes are
likely eventually to lead to the loss of another's life or to substantial bodily harm to another, or
are
likely to harm substantially the financial interests or property of another. Similarly there must be
freedom to comply with law or an order of a court, to establish a claim or defense on the lawyer's
behalf in disputes between the lawyer and the client, to establish a defense to allegations against
the
lawyer based on conduct involving the client, to permit the lawyer to respond in any proceeding
concerning the lawyer's representation of the client, or to prevent or to rectify the consequences
of
a client's criminal or fraudulent act which the lawyer's services had furthered without the
lawyer's
knowledge.
The lawyer must always seek to persuade the client to adopt a lawful course of
action. When this
attempt is not successful, and the lawyer is either required to reveal information relating to the
representation of the client or permitted to reveal such information and determined to do so, the
disclosure should be no greater than is required under the circumstances and tailored--both as to
the quantity of information revealed and the manner of the revelation--to minimize to the extent
practicable the adverse effect upon the client. A lawyer required to decide the manner in which
to
reveal information relating to the representation should consider 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.
[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) recognizes the overriding value of life and physical integrity and requires 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 must 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 (c)(1) 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(e), 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 (c)(1) 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 (c)(2) 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 (c)(2) does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense.
Disclosure to Secure Compliance Advice
[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 (c)(3) permits such disclosure because of the importance of a lawyer's compliance with these Rules.
Disclosure in Controversies Regarding the Lawyer's 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 (c)(4) 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 (c)(4) 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.
Disclosure Required by Law or Court Order
[12] 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 the other law requires disclosure, paragraph (c)(5) 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 the client's written consent 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 (c)(5) permits the lawyer to comply with the court's order.
Limits of Extent of Disclosure
[14] Paragraph (b) requires and paragraph (c) 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 (c) permits but does not require the disclosure of information relating to a client's representation to accomplish the purposes specified in paragraphs (c)(1) through (c)(5). 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 (c) 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 (c). See Rules 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.
Withdrawal
If the lawyer's services will be used by the client in materially furthering a course of
criminal or
fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1).
After withdrawal the lawyer is required to refrain from making disclosure of the
clients' confidences,
except as otherwise provided in this Rule. This Rule, Rule 1.8(b), and Rule 1.16(e) do not
prevent
the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or
disaffirm any opinion, document, affirmation, or the like.
Where the client is an organization, the lawyer may be in doubt whether
contemplated conduct will
actually be carried out by the organization. Where necessary to guide conduct in connection
with
this Rule, the lawyer may make inquiry within the organization (See Comment to Rule
1.13).
Dispute Concerning Lawyer's Conduct
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. The lawyer's right to
respond
arises when an assertion of such complicity has been made. Paragraph (e) 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, of course, applies where a proceeding has been commenced.
Where
practicable and not prejudicial to the lawyer's ability to establish the defense, the lawyer should
advise the client of the third party's assertion and request that the client respond appropriately.
In
any event, disclosure should be no greater than the lawyer reasonably believes is necessary to
vindicate innocence, the disclosure should be made in a manner which 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.
If the lawyer is charged with wrongdoing in which the client's conduct is implicated,
the rule of
confidentiality should not prevent the lawyer from defending against the charge. Such a charge
can
arise in a civil, criminal or professional disciplinary 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,
such
as when a person claims to have been defrauded by the lawyer and client acting together. A
lawyer
entitled to a fee is permitted by paragraph (e) 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. As stated above, the lawyer must make every
effort
practicable to avoid unnecessary disclosure of information relating to a representation, to limit
disclosure to those having the need to know it, and to obtain protective orders or make other
arrangements minimizing the risk of disclosure.
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 5.1, 5.3 and 8.4(a).
[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 written consent to the use of a means of communication that would otherwise be prohibited by this Rule.
Lawyer Copying of Items Related to Representation
For the lawyer's own purposes, including facilitation of any revelation that might be
permitted by
paragraph (e), a lawyer is permitted to make copies of items in a file. The lawyer may
charge the
client for this copying only if allowed by Rule 1.19. The protection of this Rule, and the
circumstances in which revelation is required or permitted, are applicable to the lawyer's copy or
copies.
Disclosures Otherwise Required or Authorized
This Rule and other provisions in these Rules (see Rules 2.2, 2.3, and 3.3), in some
circumstances
permit and in others require a lawyer to disclose information relating to the representation. In
these
instances, the obligation not to reveal is not breached by disclosure.
Provisions in other law may seem to permit or require a lawyer to disclose
information relating to
a representation. Such a provision raises the legal issue of which directive takes precedence--the
general rule of non-revelation found in this Rule or the provision in other law authorizing
disclosure.
It is the lawyer's obligation to disclose only when the precedence of the law authorizing
disclosure
is clear; an order of a court requiring or permitting disclosure is to be taken as a determination
of
that precedence.
The attorney-client privilege is a protector of some matters related to the
representation of a client,
and, as to a part of the information possessed by a lawyer about a client, operates as an
obligation
of the lawyer not to reveal. However, the law of attorney-client privilege differs among the
jurisdictions. If a lawyer is called as a witness to give testimony concerning a client, and the
client
has not consented to the disclosure or the disclosure is neither permitted nor required by these
Rules,
the lawyer must invoke the privilege to resist disclosure whenever the privilege is applicable.
The
failure to invoke the client's privilege in such circumstances is a violation of the obligation
recognized in this Rule. If invocation of the privilege results in a ruling issued by a court or
other
tribunal of competent jurisdiction requiring the lawyer to disclose the information, the lawyer
may
comply; that compliance is not a violation of the obligation of confidence recognized in this
Rule.
Former Client
The duty of confidentiality continues after the client-lawyer relationship has
terminated
Lawyer Copying of Items Related to Representation
[18] For the lawyer's own purposes, including facilitation of any revelation that might be permitted by paragraph (c), a lawyer is permitted to make copies of items in a file. The lawyer may charge the client for this copying only if allowed by Rule 1.19. The protection of this Rule, and the circumstances in which revelation is required or permitted, are applicable to the lawyer's copy or copies.
Use of Confidential Information to the Disadvantage of Client or Former Client
[19] Use by the lawyer of confidential information to the disadvantage of a client
or former client
is equivalent to revelation. This Rule and comment permits neither revelation nor use to
the
disadvantage of a client except as required or permitted governed by
the Rule Rules 1.8(b) and 1.9.
Reference: Minutes of the Professional Conduct Subcommittee of the Attorney
Standards
Committee on 03/16/84, 05/23/84, 06/27/84, 08/17/84, 09/13/84, 10/19/84, 12/14/84, 02/08/85,
03/11/85, 04/26/85, 08/23/85 and 03/15/86; Minutes of the Joint Committee on Attorney
Standards
on 6/8/99, 9/16/99. 11/19/99. 3/23/00, 6/13/00, 9/15/00, 11/17/00, and
6/12/01, 02/28/03, 02/27/04,
11/19/04, 06/14/05, 09/09/05.