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Be Careful What You Reveal: Model Rule of Professional Conduct 1.6

By Edward W. Feldman

 

Two lawyers walk into a bar. That may sound like the beginning of a joke. In fact, it may be the beginning of an ethical violation. If the two lawyers are not in the same firm, and they casually drink and swap war stories, they almost certainly will violate ABA Model Rule of Professional Conduct 1.6(a), even if what they discuss is neither privileged nor something the client would consider a confidence.


My attention to this rule was focused last year because the Illinois version of Rule 1.6(a) was broadened to conform to the Model Rule. Having examined the Model Rule, I daresay that most lawyers in the many states using Model Rule 1.6(a) do not fully grasp the breadth of the rule and unwittingly violate it regularly.


Imagine that our two hypothetical lawyers are law school classmates who meet occasionally over drinks to catch up. One became a litigator, the other a transactional lawyer. Nevertheless, they remain friends.


The litigator begins. He takes care not to reveal privileged communications or violate any protective order. But he freely names clients and recounts facts about two of his cases that were previously revealed in filed pleadings, in statements made in open court, and in nonconfidential discovery materials. He has not asked for or obtained client consent to talk about this information, and it never occurred to him that he needed to do so.


The transactional lawyer describes a pair of matters she is handling. She takes care not to reveal any privileged communications or information that the companies are keeping secret. She reveals that her client, XYZ Corp., has notified 200 employees that they are being terminated via a reduction in force, and her firm has prepared the severance documents. She also reveals that another client, ABC Corp., had just hired a new chief executive officer, Ned Profitt, and she had negotiated the contract with Profitt’s attorney. She describes several of the contract terms, including Profitt’s compensation package, all of which were revealed in documents filed with the Securities and Exchange Commission (SEC). She has not asked for or obtained client consent to have such discussions, and it never occurred to her that such consent would be needed.


Most lawyers would admit that they have had many conversations not unlike the one above. And most would be surprised to learn that a straightforward, literal reading of Rule 1.6 says that both lawyers violated the rule.


Titled “Confidentiality of Information,” the purpose of Rule 1.6 is to define the scope of a lawyer’s obligations to preserve the confidentiality of client information. This duty, which encompasses but is broader than the attorney-client privilege, “contributes to the trust that is the hallmark of the client-lawyer relationship.” ABA Model Rule 1.6 cmt. [2].


Misunderstanding the Rule
Most lawyers know that they owe a duty of confidentiality to their clients, and they think about the duty as encompassing two concepts. They have a good working knowledge of the attorney-client privilege, and they know that they are not supposed to reveal privileged communications. They also understand, but in a more vague way, that a client may have confidences or secrets that are not privileged but that a lawyer should not reveal. For example, a lawyer may learn via a non-privileged communication that a client is quietly working on an invention or planning to leave her employment. The lawyer would understand that the client may not want to reveal such nonpublic information, and the lawyer would guard the secret.


Most lawyers think that their duties end with such confidences and secrets. But the Model Rule, which governs lawyers in a majority of states, is not limited to confidences or secrets of clients. In their stead is the expansive phrase “information relating to the representation”: “A lawyer shall not revealinformation relating to the representation of a clientunless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”


Focus on the “exceedingly broad” restraint, as it has been called. Geoffrey C. Hazard Jr. & W. William Hodes, The Law of Lawyering § 9.15 (3d ed. Supp. 2012). Under the Model Rule, not only are lawyers barred from revealing a “confidence or secret” absent informed consent, but also, unless an exception applies, lawyers may not reveal any information relating to the representation of a client, regardless of its confidentiality. And while most lawyers think that the information they need to safeguard would be of or about the client, the Model Rule is broader. It covers “information relating to the representation of a client,” regardless of whether the information is even specifically about the client at all. “Model Rule 1.6(a) creates a genuine presumption of confidentiality. It operates automatically, in all cases, without any signal from the client, and without the vague qualifiers of the [old] Code.” Hazard & Hodes, supra, § 9.15.


Your initial reaction to this might be similar to mine: The Model Rule can’t possibly mean what it says. Read literally, it seems boundless. A recent informal ethics opinion posed the question and answer like this: “What types of information about a client does Rule 1.6 restrict the lawyer from revealing? . . . ALL information relating to the representation of the client.” State Bar of Nevada, Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 41 (June 24, 2009) (emphasis in original). This opinion lists “three remarkable omissions” in the rule compared with prior law: the removal of the qualifier “confidential,” the lack of any requirement of harm or adversity to the client, and the lack of any exception for information already in the public domain. Id. at 2–3.


If “relating to” is as broad as it sounds, then under the broad Model Rule language, our two lawyers in the bar could not talk about what was filed in court or with the SEC without wondering whether they had crossed the line.


Fencing in “Reveal”
You might think that the word “reveal” fences in the rule, but the fence, if it exists at all, is rickety. “Reveal” arguably is a binary term: Something either has or has not been revealed. Under this interpretation, information once revealed cannot be re-revealed. This interpretation reads “revealed” as akin to the proverbial rung bell that cannot be un-rung. Does our transactional friend reveal anything when 200 employees had already been fired?


While one might plausibly interpret the rule that way, the term “reveal” is probably broader. Information revealed to a court and buried in a court file is not thereby revealed to friends, relatives, or others. Most people are ignorant of what appears in court records. Disclosure of the information to people outside the lawsuit reveals it to them regardless of whether it can be found in a filed pleading or transcript. Likewise, thousands of people might know about the layoffs at XYZ Corp., but they may not be known to most people. A leading treatise interprets “reveal” as synonymous with “volunteering.” “Rule 1.6 applies most insistently to prevent lawyers from volunteering information about a client (to anyone).” Hazard & Hodes, supra, § 9.2.


Maybe there should be a Google-exception to the rule under which a lawyer may reveal information readily accessible via the Internet. But the rule does not say that. And Comment [3] to the rule states that it “applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” “The range of protected information is extremely broad, covering information received from the client or any other source, even public sources, and even information that is not itself protected but may lead to the discovery of protected information by a third party.” Annotated Model Rules of Prof’l Conduct 97 (7th ed. 2011).


And lest you think that this broad reading would be narrowed by courts, beware; it is well-supported. See Iowa Supreme Court Att’y Discipline Bd. v. Marzen, 779 N.W.2d 757, 765–67 (Iowa 2010); In re Bryan, 61 P.3d 641 (Kan. 2003); Okla. Bar Ass’n v. Chappell, 93 P.3d 25, 31–32 (Okla. 2004); In re Harman, 628 N.W.2d 351 (Wis. 2001); and Sealed Party v. Sealed Party, No. Civ. A. H-04-2229, 2006 WL 1207732, *13–14 (S.D. Tex. May 4, 2006).


The Restatement (Third) of the Law Governing Lawyers takes a more relaxed approach, in line with what most lawyers assume. It would find no violation if the revealed information is already “generally known” or harmless to the client.


The Restatement excepts from the duty of confidentiality “information that is generally known.” Restatement(Third) of the Law Governing Lawyers § 59 (2001). What counts as “generally known depends on all circumstances relevant in obtaining the information,” id. cmt. d, an unhelpful formulation. If the information is publicly available through electronic searches of public databases or in government offices or public libraries, the Restatement would consider it “generally known” unless it can be obtained only by means of “special knowledge or substantial difficulty or expense.”


The Restatement further restricts Model Rule 1.6(a) by reading a harm requirement into the rule. Id. § 60(1)(a). The comments acknowledge that this “adverse effect” formulation contradicts “a literal reading of” Model Rule 1.6(a). Id. cmt. (c)(i). It opines that “[s]uch a strict interpretation goes beyond the proper interpretation of the rule.” But the Reporter’s Note cites nothing to support this conclusion.


While the Restatement’s approach—creating “general knowledge” and “no-harm-no-foul” qualifications—seems sensible, it is nonbinding. Model Rule 1.6 itself—which is binding in a majority of states—contains neither restriction. Moreover, “generally known” and “material harm” qualifications do appear elsewhere in the Model Rules, but not in a fashion helpful to someone wanting to corral the Rule 1.6 duty of confidentiality.


“Wait,” you say, “wait!” Does the Model Rule cover client identities even when the representation itself is not confidential, such as when counsel appears in a lawsuit or negotiates a not otherwise confidential transaction? Under the above authorities and a literal reading of the rule, the answer, in a word, is “yes,” notwithstanding the protestations of the Restatement to the contrary. “Even the mere identity of a client is protected by Rule 1.6.” Nevada Formal Op. 41 at 3.


To be sure, some qualifications are necessary to avoid complete absurdity. For example, if a relevant fact to a case was that water boils at 100 degrees Celsius, it would not violate the rule to utter that fact in other contexts. Likewise, if a new prospective client called a lawyer and asked, “Are you the lawyer handling the Acme case pending before Judge Furrowbrow?” the lawyer could not reasonably be expected to place the new client on hold while calling Acme to get permission to answer the question.


The fact that we are even considering such absurdities, however, illustrates the extraordinary breadth of the rule.


Keywords: Model Rule of Professional Conduct 1.6, privilege, confidentiality


Edward W. Feldman is a partner with Miller, Shakman & Beem LLP, Chicago.


This article was adapted from a longer one that was published in the Summer/Fall 2012 issue of Litigation.


 

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