The Confidentiality Baseline

Lawyer Self-Protection Disclosures

The Confidentiality Baseline

Every exception in this chapter operates against a default of silence. Model Rule 1.6(a) bars a lawyer from revealing information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or paragraph (b) permits it.¹ Only the third route, the list of exceptions in paragraph (b), holds the lawyer self-protection provisions studied here. A disclosure that fits none of the three violates the rule, however sympathetic the lawyer's reason for speaking.

That default reaches further than most students expect. The comments to Rule 1.6 stress the remarkable breadth of the confidentiality notion: the label attaches irrespective of the source of the information, irrespective of whether the client asked for secrecy, and irrespective of whether revealing the information would harm the client.² The ethical duty is therefore wider than the attorney-client privilege, which protects confidential communications made to a lawyer to obtain legal services.³ It is wider, too, than privilege and work product combined.⁴

The first two routes out of silence rest on the client's own authority. Consent counts only if it is informed: the client must receive "adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct," and the more valuable the information or the graver the consequences of release, the fuller the explanation must be.⁵ Implied authorization covers disclosures that plainly advance the client's objectives. A landowner who hires a lawyer to sell a parcel expects the lawyer to tell a prospective buyer that the land is for sale. That fact is protected information, but revealing it serves the client's goal, so the disclosure is impliedly authorized and no paragraph (b) exception is needed.⁶

The land sale and the dinner party differ in their link to the client's objective. Telling the buyer advances the sale the client hired the lawyer to complete, while repeating the custody details advances nothing the client sought. Only the client's informed consent or a paragraph (b) exception could have supported the second disclosure.

The default is not absolute. An opinion in McClure v. Thompson says so directly: the duty to guard a client's confidences is "of course, not absolute," and it must be balanced against the public's interest in safety and justice, which is why Rule 1.6 carves out exceptions at all. The opinion names two, one of which lets a lawyer disclose "to establish a claim or defense on behalf of the lawyer," and it limits both to what the lawyer "reasonably believes necessary."⁷ The current Model Rule lists seven situations in paragraph (b), among them preventing reasonably certain bodily harm, preventing or mitigating certain frauds in which the lawyer's services were used, complying with law or a court order, and detecting and resolving conflicts of interest.⁸

Two of the seven protect the lawyer, and they are the subject of this chapter. Paragraph (b)(4) permits a lawyer to reveal information to secure legal advice about the lawyer's own compliance with the Rules.⁹ Paragraph (b)(5) permits a lawyer to reveal information to establish a claim or defense in a controversy with the client, to defend against a criminal charge or civil claim based on conduct in which the client was involved, or to respond to allegations in any proceeding concerning the representation.¹⁰

Each exception answers a problem the strict default would otherwise create. A lawyer unsure whether a planned step complies with the Rules would have to guess, because describing the client's situation to an outside adviser is itself a disclosure. A lawyer accused of overbilling by the client, or of complicity by a prosecutor, faces the same trap in sharper form: the facts that answer the accusation are the client's confidences, and without an exception the lawyer would have to defend without them. In the Model Rules and most states, both exceptions are permissive. The lawyer may disclose but need not, and faces no discipline either way. Both operate only to the extent the lawyer reasonably believes disclosure necessary, and over-disclosure can subject the lawyer to discipline.¹¹

Not every source uses these numbers. One commentary quoted in this chapter lists the claim-and-defense provision as item (3), so identify each exception by what it permits and treat (b)(4) and (b)(5) as the current citations.¹² The next section takes up the ethics-advice exception, and the sections after it turn to the claim-and-defense exception, whose three clauses each cover a different kind of dispute.