The Baseline Duty of Confidentiality

Client-Authorized Disclosures

The Baseline Duty of Confidentiality

Model Rule 1.6(a) sets a default of silence. A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or paragraph (b) permits it.¹ Each of the three is a gateway, and a lawyer who wants to say anything about a client matter must be able to name the one that is open. If none is open, the prohibition controls. This chapter takes up the first two gateways, which depend on the client's authorization, express or implied. They matter because the prohibition they depart from is so wide.

What the prohibition protects is “information relating to the representation of a client,” and the phrase reaches well beyond privileged communications and work product. It includes information learned from sources other than the client, observations and facts that are not “communications,” and documents prepared in the ordinary course of business.² The comments to Rule 1.6 add that the confidentiality label attaches irrespective of the source of the information, irrespective of whether the client asked for privacy, and irrespective of whether disclosure would harm the client.³ The duty is also perpetual. It continues after the relationship ends, and Rule 1.9(c)(1) generally bars disclosing or using a former client's confidential information to the former client's disadvantage.⁴

Rule 1.6(a) is also more protective than the rule it replaced. Former Disciplinary Rule 4-101(A) protected only information that the client asked to be “held inviolate” or that would be “embarrassing” or “likely to be detrimental” if revealed. Rule 1.6(a) drops those conditions and sets a more forceful presumption in favor of confidentiality.⁵ Older cases, and the rules of several states including New York and the District of Columbia, keep the Model Code vocabulary of “confidences” and “secrets.” In practice that formulation is unlikely to differ much from the modern definition.⁶

Public availability does not release the lawyer. In Iowa Supreme Court Attorney Disciplinary Board v. Marzen, the court held that the rule of confidentiality is breached when an attorney discloses information learned through the attorney-client relationship, even if that information is otherwise publicly available.⁷ The court's reason was that the sanctity of the lawyer-client relationship is necessary to ensure free and unrestrained communication without fear of betrayal.⁸ A lawyer who repeats what a client confided has done what the client trusted the lawyer not to do, and it makes no difference that the same facts could also be found in a courthouse file.

The duty limits what a lawyer does with protected information as well as what the lawyer says. Suppose a lawyer represents Company A, which is planning to take over Company B, and also represents Investor, a wealthy individual. The lawyer may not tip off Investor so that Investor can buy Company B's stock. Apart from any insider-trading question, that tip would violate the duty the lawyer owes Company A under Rule 1.8(b).⁹

The duty is easily confused with the attorney-client privilege, but the two answer different questions. The 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.¹¹ The traditional formulation covers confidential communications made by a client who seeks legal advice from a lawyer acting as such. Those communications are permanently protected from disclosure unless the protection is waived.¹² The ethical duty applies in situations other than those where evidence is sought from the lawyer through compulsion of law, and it governs what the lawyer may say voluntarily.¹³

Because the duty reaches further, much information that fails the privilege test is still confidential. The privilege attaches only to a subset of confidential information, the communications between lawyer and client that are immune from legal process.¹⁴ A lawyer must still respond to a lawful subpoena or court order seeking information outside any recognized privilege, but only compulsion of law forces that result. Without it, the lawyer generally must not disclose the information voluntarily.¹⁵ Concluding that something is not privileged therefore shows only that a court may be able to compel it. It never shows that the lawyer is free to volunteer it.

The exceptions in paragraph (b) are ordinarily limited to extraordinary circumstances in which serious harm is reasonably certain to occur or has resulted, and they remain few and narrowly drawn.¹⁶ That narrowness is why this chapter concentrates on the two gateways that depend on the client: informed consent and implied authorization.