Who Is Owed the Duty

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 phrase “of a client” leaves a question open: who stands behind it, and for how long? The text asks only whether the information relates to the representation. It says nothing about payment, about whether the engagement is still open, or about whether the client is a person or an entity. Each silence invites an argument that the lawyer may speak, and each argument fails.

The duty has to reach these cases because it works only if people tell lawyers the whole story, including the damaging parts. A person choosing a lawyer must describe the problem before the lawyer can say yes or no. A person whose matter has ended knows the lawyer still holds everything learned along the way. An organization can speak only through the people who work for it. If protection waited for a fee, expired with the closing letter, or stopped at an employee’s desk, each of them would foresee the gap and trim the story to fit it.

The subsections below sort the cases by status: current and former clients, people who consulted a lawyer but never hired one, and organizations with the agents who act for them and for their lawyers. The strength of the duty varies with status, so identify the person’s status before applying the rule.

Current and Former Clients

Nothing in Rule 1.6(a) ties the prohibition to the life of the engagement,² and the comments describe the duty as perpetual: it continues after the attorney-client relationship has ended.³ Rule 1.9(c) supplies the former-client version. It bars the lawyer from using information relating to the former representation “to the disadvantage of the former client” unless the rules permit the use or the information has become generally known, and it separately bars revealing that information except as the rules permit.⁴ A closed file, a paid final bill, and the passage of years therefore leave the lawyer where Rule 1.6(a) put the lawyer at the start: silent unless a gateway opens.

The rule takes this shape because a client deciding how candidly to describe a problem is betting on the future as much as on the present. The lawyer who hears the story today may be free to represent anyone tomorrow. If protection lapsed with the engagement, the client would have to forecast whether the lawyer might someday represent an adversary and turn the story against the client, and the safe answer to that forecast is to hold back the damaging facts. The Supreme Court made the same point about the privilege in Swidler & Berlin v. United States, calling it a rule meant “to encourage ‘full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.’”⁵ A confidentiality duty that expired with the engagement would defeat that purpose. The continuing duty removes the forecast. It prevents the lawyer from using a former client’s private information to the client’s disadvantage or to the benefit of a new client whose interests are adverse, and absent the former client’s informed consent the lawyer is forever barred.⁶

Rule 1.9(c) names two verbs, and each forbids something different. The ban on use reaches a lawyer who turns the former client’s information against that client or hands it to a new client with adverse interests.⁷ The ban on revealing carries no “disadvantage” qualifier, so it reaches exposure of the information whether or not anyone is hurt by it.⁸ Neither ban requires that the later matter be related to the earlier one: in general, the lawyer may neither use nor reveal confidential information relating to the representation of a former client.⁹ One feature separates the former-client duty from the current-client duty. Rule 1.9(c)(1) lets the lawyer use information that has become generally known, while Rule 1.6 attaches to all information relating to the representation, whatever its source and whether or not it is generally known.¹⁰ The privilege is narrower than either rule, because it covers confidential communications made to a lawyer to obtain legal services.¹¹

The bar ends only when a gateway opens, and for a former client the gateway that matters most is the former client’s own informed consent.¹²

The consent in that scene works because it was informed: the lawyer explained the risks and the alternative before the client agreed. A shrug would not have opened the gateway, and the section on informed consent, below, sets out what the explanation must cover. Three events tempt students to call the duty finished: the file closes, the last bill is paid, and years pass. None is a gateway, and a perpetual duty has no sunset.¹³

Prospective Clients

Rule 1.6(a) speaks of a “client,” which could suggest that the duty begins only when a lawyer is hired. Rule 1.18 closes that gap. It defines a prospective client as “[a] person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.”¹⁶ Lawyers have long owed responsibilities to people with whom a relationship is being contemplated: the information a would-be client shares is entitled to at least some of the protections of confidentiality, including the attorney-client privilege, even if lawyer and client later decide not to go forward.¹⁷

The duty attaches this early because of a sequencing problem. A lawyer cannot decide whether to take a matter until the person explains it, and that explanation is usually the damaging account the duty exists to draw out. If protection waited for an engagement, the person would have to hire the lawyer before receiving any assurance of silence, or else trim the story to the safest version and leave the lawyer to evaluate a distorted account. Attaching the duty to the consultation removes the dilemma.

Any discussion with a lawyer about the possibility of forming a relationship is a communication with a prospective client, and the lawyer must not reveal private information learned in it, whether or not a relationship follows.¹⁸

Two features keep the protection tied to genuine consultations. The person must consult the lawyer about the possibility of representation, and, as Comment 2 to Rule 1.18 explains, must have a “reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship.”¹⁹ The rule applies only when there is a fair prospect that the representation will be undertaken, so not every person who chooses to share information with a lawyer is covered.²⁰

The business owner and the emailer each handed over damaging information. The difference lies in the setting: she sat down with a lawyer in a real attempt to get help, while the emailer mailed a narrative to a stranger for a tactical purpose. Students err in two directions here, by demanding an engagement before the duty attaches and by treating every message a lawyer receives as protected.

Protection for a prospective client is real but measured. The information is entitled to at least some of confidentiality’s protections, not necessarily all of a client’s.²¹ Rule 1.18(b) sets the measure at the former-client standard: the lawyer must not use or reveal what the consultation disclosed except as Rule 1.9 would permit for a former client’s information. The standard has a consequence at the margin. A lawyer may use a prospective client’s information once it has become generally known, as with a former client’s, while a current client’s information stays protected even after it becomes public.²²

Organizations and Agents

The word in Rule 1.6(a) is “client,” not “person,” so the duty protects an organization that is the lawyer’s client just as it protects an individual.²⁵ Who counts as the organizational client when a lawyer serves a company is a separate question, and this section assumes the entity is the client. The question here is narrower. An organization has no voice of its own, so how does the duty reach information that arrives through the people who act for it?

Information in the hands of an organization’s people can belong to the organization. Rule 4.4(a) shows the point from the opposing side. It directs a lawyer not to use “methods of obtaining evidence that violate the legal rights of” a third person, and Comment 1 confirms that this includes “unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.” A lawyer therefore may not try to obtain from an entity’s employees or agents information protected by the attorney-client privilege or the work-product doctrine.²⁶

The lawyer’s side of the channel works the same way, because a lawyer rarely handles a matter alone. A disclosure that is impliedly authorized in order to carry out the representation does not breach the duty,²⁷ and handing the file to a paralegal or to a colleague working the matter is the ordinary example: the helper acts as part of the lawyer’s team, not as an outsider. The lawyer remains accountable for what happens next. Rule 1.6(c) requires reasonable efforts to prevent inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation.²⁸ Rule 5.3 adds that the lawyer must manage and supervise nonlawyer assistants through reasonable measures to uphold professional obligations, which Comment 2 says include “the obligation not to disclose information relating to the representation of the client.”²⁹ The sections on implied authorization and on safeguarding information develop both points.

Two layers of protection cover what employees tell the organization’s lawyer. The ethical duty attaches automatically, because anything an employee says about the matter is information relating to the representation.³⁰ The privilege is narrower and asks more. In Upjohn Co. v. United States, employees answered a company lawyer’s questionnaires, marked confidential, at the direction of corporate superiors, knowing that the answers would help the company obtain legal advice, and the Supreme Court protected those communications. Three facts carried the result: the employees spoke at their superiors’ direction, they understood that the purpose was legal advice for the company, and the answers were treated as confidential. When an exam stem has a company lawyer questioning employees, check for those three facts.