Choosing the Right Basis

Choosing the Right Basis

Rule 1.6(a) sets one default and three ways around it. 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 The three gateways have an order. The client's permission, given directly or by implication, is the primary and typical basis for disclosure,² so a lawyer tests the client's own decision first and turns to the exceptions only when that decision does not cover the disclosure. That order keeps control of the information with the person it protects, and it keeps the exceptions narrow.

The first step fixes the scope of everything after it. The duty reaches information learned from sources other than the client, observations and facts that are not communications, and documents prepared in the ordinary course of business. None of these need be privileged communications or work product.³ A lawyer therefore cannot escape the sequence by showing that a fact did not come from a confidence. The second and third steps both rest on the client, but in different ways. Informed consent is what the client actually said after hearing the risks and alternatives. Implied authorization is an inference from the objective the client gave the representation. Each is anchored in the client's real choice or real objective, and that anchor explains the most common error in this area.

The error is to treat the lawyer's prediction that the client would approve as though it were a gateway. A prediction is a guess about what the client might say if asked. The Rule asks about something else: what the client did say after the explanation, or what the engagement itself required.

The cure for a confident guess costs almost nothing. The lawyer asks, explains what sharing involves and what the client could do instead, and acts on the answer. That conversation turns the guess into informed consent. The implied gateway works differently, as a second scene shows.

Both lawyers revealed client information without discussing it first. The letter drew its authority from the objective the owner gave the lawyer. The remark to the brother drew its authority only from the lawyer's forecast of what would please the client. A client who hires a lawyer to press a claim has accepted the steps that pressing it requires. No comparable acceptance attaches to a lawyer's hunch about a relative's curiosity.

A second error treats the attorney-client privilege as the measure of what a lawyer may say.

The duty of confidentiality is much broader than the privilege and work-product protection. It reaches observations, facts from other sources, and ordinary-course documents.⁴ A lawyer who concludes that a fact is not privileged has therefore answered a question the sequence never asks. The question that remains is whether the client consented, whether the engagement required the disclosure, or whether an exception applies.

When the client-based gateways fail, paragraph (b) supplies the third. Its lead-in sets the pattern for every exception that follows: a lawyer "may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary" for the listed purposes.⁵ In most states and under the Model Rules, the exceptions are permissive, so the lawyer may disclose but need not.⁶ Whatever the exception, its necessity limit marks the edge of what the lawyer may reveal under it. The exceptions give the lawyer no roving warrant to reveal information as the lawyer sees fit, and the presumption still stands against disclosure.⁷ A lawyer's belief that speaking would be wise is therefore not a gateway. The exceptions themselves are taught in separate readings, each with its own elements.