What Information Is Protected

Rule 1.6(a) forbids a lawyer to reveal “information relating to the representation of a client” unless the client gives informed consent, the disclosure is impliedly authorized, or paragraph (b) permits it.¹ The three gateways matter only if the information falls inside that phrase, so the first question in any confidentiality problem is whether the rule covers what the lawyer wants to say. The text answers broadly. It ties protection to a connection with the representation and says nothing that confines the rule to communications from the client, to statements made in confidence, or to facts the client asked the lawyer to keep quiet.

The breadth tracks how representations work. A lawyer collects facts from witnesses, files, site visits, and her own analysis, and a disclosure hurts mostly because of what it reveals about one client’s affairs, whoever supplied the fact. A rule limited to what the client announced as secret would make the client label each fact while telling it, and would leave the lawyer guessing about everything learned elsewhere. Tying the duty to the representation itself avoids both problems and puts the burden on the lawyer: treat related information as protected until a gateway opens.

The next three subsections ask where protected information can come from, how the rule’s single phrase relates to the older vocabulary of “confidences” and “secrets,” and what becomes of the protection when the facts turn public.

Any Source, Any Form

Rule 1.6(a) attaches no condition about where information came from or what form it takes; the only requirement is that the information relate to the representation.² Comment 3 says so directly: the rule “applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”³ The boundary therefore runs around a connection, the information’s link to the client’s matter, and everything on the connected side stays protected until a gateway opens.

In a working representation the sources are many. The client’s account is the obvious one, but a lawyer also takes in statements from witnesses, opposing parties, and experts, records pulled from files and databases, things seen on a site visit or at a deposition, and her own evaluation of a claim’s strengths and weaknesses. Each is information relating to the representation. A lawyer therefore cannot sort what she knows into protected and unprotected piles by asking who supplied it. Nor can she sort by asking whether the client wanted secrecy or whether disclosure would hurt, because the confidentiality label attaches irrespective of the source, irrespective of whether the client asked the lawyer to respect the information’s privacy, and irrespective of whether dissemination would cause the client harm.⁴

The reason for a source-blind rule is that a disclosure does its damage through what the fact reveals about the client’s case. An investigator who learns from a witness that the client ran a red light holds exactly the fact the other side most wants, and repeating it hurts the client as much as if the client had confessed it in the lawyer’s office. A rule limited to the client’s own words would leave that fact exposed. It would also force the lawyer and client to decide in advance which facts belong in which pile, a decision neither can make reliably while the matter is still unfolding.

The bartender’s remark also shows how much wider the ethical duty is than the privilege most students meet first. A third party’s comment in a bar is not a communication between lawyer and client, so it likely falls outside the attorney-client privilege altogether. The ethical duty reaches it anyway, because the duty extends well beyond privileged communications.⁵ For a voluntary disclosure, the governing question is whether the information relates to the representation, and the privilege question is a different inquiry that the section on confidentiality versus privilege develops below.

The phrase “relating to” is generous, but it has an edge. Information with no link to any client matter the lawyer handles falls outside Rule 1.6(a), since the rule protects information relating to a representation and a stranger’s private affairs relate to none.⁶

The two remarks reached the lawyer by chance from strangers on the same train, and the connection to a client matter alone separated the unprotected one from the protected one. The test on an exam is a single question: does this information connect to a matter the lawyer is handling? A yes settles the scope question whoever supplied the information, in whatever form it arrived, and whether or not the client treated it as secret.

Sharing information with a lawyer does not by itself bring the sharer within the rule’s protection. Under Rule 1.18(a), a “prospective client” is a person who consults a lawyer about the possibility of forming a client-lawyer relationship, and because the rule applies only when there is a fair prospect that the representation will be undertaken, only a person with a reasonable expectation that the lawyer is willing to discuss forming one qualifies.⁷ The later section on who is owed the duty takes this up. For now, the scope question (does the information relate to a representation?) and the who-is-owed question are separate inquiries.

Old Confidences and Secrets

Rule 1.6(a) protects one category, “information relating to the representation of a client,” where earlier ethics rules used two labels.⁹ The former Model Code spoke of “confidences,” meaning privileged information, and of “secrets,” and under Disciplinary Rule 4-101(A) the second group received protection only when the client asked that the information be “held inviolate” or when revealing it would be “embarrassing” or “likely to be detrimental.”¹⁰ Comparing the two formulas sharpens the scope rule, because a single broad phrase is easiest to appreciate beside the two-part formula it replaced.

The “secrets” category depended on facts outside the information itself. Either the client had to make a request, or the lawyer had to judge that the fact would embarrass or harm the client. Each condition invited a gap. A client who cannot know which facts will matter later cannot be expected to flag them while telling them, and a lawyer’s judgment that a fact is harmless can prove wrong once an adversary connects it to something else. By then the fact may already have been repeated.

Rule 1.6(a) removes both conditions. Information is protected whether or not the client asked for secrecy, whether or not disclosure would be detrimental to the client, and whether or not the lawyer gained it during the relationship rather than before or after.¹¹ The Model Rules thus set a more forceful presumption in favor of confidentiality than the Code did, and the lawyer’s question shrinks to one: does the information relate to the representation?¹²

The warehouse detail is the kind of fact the single phrase captures: harmless when learned, but useful to a competitor or a landlord who hears it from the lawyer. The divorce request changes nothing under the Model Rules, since the information was protected before the client said a word about secrecy.

The opinion in GTE Products Corp. v. Stewart reproduces a differently worded version of the rule. There a lawyer “shall not reveal information relating to representation of a client unless the client consents after consultation,” except for impliedly authorized disclosures and the exceptions of paragraph (b), which include disclosure “with the consent of the client or clients affected, but only after a full disclosure to them.”¹³ The wording of the consent gateway differs from today’s “informed consent,” yet the protected category is the same phrase, information relating to the representation, and the gateway structure is recognizable: consent, implied authorization, or a paragraph (b) exception.

If an older case or a state rule speaks of “confidences” and “secrets,” read the pair as the narrower set. Any fact that qualifies as a confidence or a secret also relates to the representation, so the Model Rules’ phrase protects at least everything the Code did. On an exam keyed to the Model Rules, apply the single phrase and do not ask whether the client requested secrecy or whether the fact is embarrassing.

Generally Known Information

Rule 1.6(a) contains no exception for facts that have already reached the public. Its protection attaches to the connection between the information and the representation, and a news story, a court filing, or a rumor in the client’s industry does nothing to cut that connection. The commentary makes the point outright: confidentiality attaches under Rule 1.6 to all information “relating to the representation,” regardless of the source of the information or whether it is generally known.¹⁵ When a current client’s matter becomes public, the lawyer holds the same protected information as before, and the live question is whether she may add to the public record by speaking.

A lawyer’s word weighs more than a newspaper’s, which explains why the duty survives publicity. A published report is often partial or built on an anonymous source, and readers discount it. The same assertion from the lawyer handling the matter comes from the person the client trusted with the facts, so it settles doubts the press could not settle. The commentary on former clients makes a parallel observation: even when information appears widely disseminated, the lawyer generally should not be a source of its further distribution, because a client should not have to bear the embarrassment of her own lawyer confirming the information’s nature and accuracy.¹⁶ That reasoning applies with greater force to a client whose matter is still live.

Some would read the duty as fading once a fact is truly known to everyone, reasoning that a secret that no longer exists leaves nothing to protect. The text gives that reading no support, because Rule 1.6(a) has no generally-known exception.¹⁷ The practical objections are also strong. Deciding that a fact is generally known is a judgment the lawyer must make on the spot, and a story in one local paper or a rumor among a few competitors may fall far short of general awareness. A lawyer who guesses wrong has already revealed protected information, and a disclosure cannot be recalled. Declining to comment costs nothing, while speaking risks a violation.

Information about a former client follows a different path. Under Rule 1.9(c), a lawyer may use information about a former client that has “become generally known,” and when the information is a matter of widespread awareness the lawyer is not barred from using it in representing a later client or otherwise, even though it would otherwise fall within the confidentiality that attaches under Rule 1.6.¹⁸ The commentary’s reason is that forbidding any reference to such general facts in a later, unrelated representation, merely because the facts were related to the earlier one, would apply the rule artificially, beyond what it was presumably meant to accomplish. The permission to use might also implicitly cover the limited disclosure needed to make concrete use of the information.¹⁹

The text of Rule 1.9(c) keeps two ideas apart, and exam questions on this topic sit on the line between them. Permission to use generally known information does not make the lawyer a willing source of it. Even when facts about a former client have been widely reported, the lawyer generally should not be the one to spread them further, especially when they are sensitive, because the former client should not have to endure a former lawyer confirming that the reports are accurate.²⁰

Wholly public facts that carry nothing personal are different, and the same permission explains why.

The two former-client scenes involve the same kind of lawyer and the same kind of client. They differ in how sensitive the facts are and in what the lawyer is asked to do with them. The manufacturer’s size is public and impersonal, and the lawyer uses it in her own later work. The surgeon’s settlement is personal, and the lawyer’s role would be to confirm it for the press. With a current client, she avoids confirming even a story that is already public. With a former client, she may use public information but should still be careful about confirming sensitive facts to others.