RULE 1.6 CONFIDENTIALITY OF INFORMATION

Obsolete Date: 8/1/2001

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. 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) required to the extent the lawyer believes necessary to prevent the client from committing an act that the lawyer believes is likely to result in imminent death or imminent substantial bodily harm;

(b) permitted when the client consents after consultation;

(c) permitted when impliedly authorized in order to carry out the representation;

(d) permitted to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act 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;

(e) permitted to the extent the lawyer reasonably believes necessary to 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;

(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) permitted to comply with law or 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.

A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.

This principle of confidentiality is also given effect in the attorney-client privilege and the work product doctrine. The attorney-client privilege applies 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 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 required or permitted by these Rules or other law. See also Scope.

Authorized Disclosure

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.

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.

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.

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.

Use of Confidential Information to the Disadvantage of Client

Use by the lawyer of confidential information to the disadvantage of a 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 by the Rule.

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