Limiting the Disclosure

The advice and self-defense exceptions each name an occasion, and the opening words of Rule 1.6(b) set the measure. Paragraph (b)(4) permits disclosure to secure advice about the lawyer's own compliance with the Rules.¹ Paragraph (b)(5) permits it 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.² Either way, the lawyer may reveal information only "to the extent the lawyer reasonably believes necessary."³ A disclosure must pass both tests. A lawyer sued for a fee may prove the work done, but the suit gives no license to reveal the rest of the client's affairs.

The measure follows from the reason for the exceptions. Each rests on a need of the lawyer, whether an answer to a compliance question or a reply to an attack, and a need has edges. An adviser must know enough to answer the question put to her, and a tribunal must hear enough to decide the allegation before it. Everything beyond that protects no interest of the lawyer and spends the client's confidences. One commentator, describing the newer permissions, stresses that they give the lawyer no "roving warrant" to reveal confidential information and that the presumption "still stands against disclosure of confidential information."⁴

The limit works along three lines, taken in order below: which facts the lawyer may reveal, who may receive them and where the lawyer may use them, and how both lines apply when the lawyer wants to answer criticism in public.

Only the Facts the Purpose Requires

The lead-in to paragraph (b) ties every disclosure under (b)(4) and (b)(5) to a purpose: advice about compliance, or a claim, defense, or response to allegations.⁵ A fact belongs in the disclosure only if it serves that purpose. That a fact concerns the representation does not qualify it, and neither does its usefulness to the lawyer's overall position.

Read in its ordinary sense, "reasonably believes" joins two requirements. The lawyer must actually believe the fact is needed, and the belief must be one that a careful lawyer in the same position would share. The first requirement rules out disclosures made for other reasons, such as pressuring a client to drop a claim or winning sympathy, because a lawyer who reveals a fact for those reasons does not believe it necessary to the purpose. The second keeps the lawyer from judging her own case alone. If sincerity sufficed, any lawyer could reveal a whole file by declaring all of it needed.

The same file therefore yields different permissible disclosures under different exceptions. A lawyer seeking ethics advice gives the adviser enough to answer the question, often the problem described without the client's name or unrelated details. A lawyer suing for a fee needs the tasks performed, the hours spent, and the results obtained, because those facts prove the fee reasonable. A lawyer answering a neglect charge needs the client's instructions, the advice given, and the steps taken. The privilege rule has the same shape. Ohio recognizes a common-law self-protection exception that lets an attorney testify about attorney-client communications when necessary to establish a fee claim or to defend against a charge of malpractice or other wrongdoing in litigation between lawyer and client.⁶

Santos's lawsuit opened the exception without enlarging it. The cost of each extra fact falls on Santos, who had no say in the disclosure, and the fact protects nothing of Brandt's. A lawyer who cannot tell whether a fact is necessary has a way to find out. The rule expressly authorizes revealing information to secure another lawyer's advice about compliance, which includes advice about when disclosure is permitted, and the commentary urges that, except in emergencies, a lawyer seek the counsel of other well-regarded lawyers before disclosing a client confidence without consent.⁷

Exam Analysis Steps

Exam questions in this area usually state a proper occasion, such as a fee suit or a bar complaint, and then slip in one fact that outruns the need. Do not stop at the occasion. Test each fact in turn:

Name the exception the lawyer invokes and its specific purpose: securing advice, proving a claim or defense, or answering allegations.
Identify what the lawyer must establish or learn to accomplish that purpose, such as the reasonableness of a fee or the answer to an ethics question.
Ask whether the lawyer actually believed the fact necessary to that purpose, and look for another motive, such as embarrassing the client or winning sympathy.
Ask whether a careful lawyer in the same position would also have believed the fact necessary. A fact that fails either the third or the fourth question falls outside the exception.

Only the Audience and Forum the Purpose Requires

The purpose that limits what a lawyer may say also limits who may hear it and where the lawyer may use it. A purpose of securing advice, or of defending a claim, charge, or set of allegations,⁹ always involves someone who must act on the information: an adviser who answers the lawyer's question or a tribunal that decides the matter before it. Information carried past that person serves no purpose of the lawyer. A lawyer suing for a fee needs the court to see the records of the work performed. A lawyer answering a neglect complaint needs the disciplinary authority, and her own counsel, to see what the client instructed and what she did. A reporter or a business rival decides nothing in either dispute, so telling them leaves the lawyer's position where it was while the client loses control over facts shared in confidence. A permission that allowed such disclosure would turn a narrow right of self-defense into a license to publicize.

The securities-fraud illustration marks the line. A lawyer accused of participating in a client's securities fraud may, if necessary, disclose the fraud to investors, but may not report it to the Wall Street Journal, and a lawyer who goes to the media faces potential discipline even if a more modest disclosure would have been permissible in self-defense.¹⁰

The lawyer's own counsel belongs among the proper recipients. One court, asked whether a law firm's in-house counsel could defend the firm against an outside client's claims, observed that even if imputation barred that, the firm would still be entitled to reveal confidential client information to outside counsel where necessary to its own defense.¹¹ A lawyer sued over a client's fraud who gives the necessary documents to her defense counsel and to the court hearing the suit has therefore reached both audiences the defense requires. Counsel cannot defend on facts it has not been told, and the court cannot decide on facts it has not seen.

Iowa Supreme Court Attorney Disciplinary Board v. Marzen draws the forum limit. Marzen, who had a bid for county attorney under way, disclosed a client's confidential information to the local media. The court held that the ability to defend "is not absolute": a lawyer "can reveal confidential client information only in the appropriate forum and only to the extent necessary to offer protection."¹² Revealing the client's information to the media may have been necessary to defend Marzen's bid, the court said, but it was not necessary to defend him against the allegations in the disciplinary proceeding, and it violated rule 32:1.6(a).¹³ The court also doubted that Marzen was mounting a defense at all, because his statements looked more like an attempt to defame the client.¹⁴ Necessity is therefore measured against the allegation being decided and the forum deciding it. Gains to a campaign or a reputation elsewhere do not count.

Hypothetical Illustration

A client files a bar complaint accusing Torres of neglecting a custody matter. Torres sends the portions of the file that bear on the complaint to the disciplinary authority and to the lawyer he hired to represent him in that proceeding. Torres is also in a dispute over dividing firm profits with a former partner, and he gives the partner's lawyer the same client messages to show that he keeps careful records. The disciplinary authority and Torres's own counsel are the audience for the defense, and the complaint is being decided in the disciplinary forum, so the first two transfers fit Rule 1.6(b)(5). The profit dispute does not involve the client, and no allegation about the client's matter is being decided there. The messages serve only Torres's standing in an unrelated quarrel, so the third transfer falls outside the permission and violates Rule 1.6(a).

A companion duty follows the information wherever it goes. Rule 1.6(c) requires a lawyer to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.¹⁵ It permits nothing. It is a standing obligation about how the lawyer handles client information, and it continues after a paragraph (b) exception opens the door. A lawyer who emails a client's records to outside defense counsel over an unsecured channel, or leaves them where people with no connection to the dispute can read them, has reached a proper audience and still exposed protected information to others.

Exam Analysis Steps

Exam stems often pair a proper occasion with a recipient who decides nothing. Ask who receives the information and where it will be used before you ask anything else:

Identify the purpose the lawyer invokes, whether advice, a claim or defense, or a response to allegations, and the adviser or decision-maker who will act on the information.
Identify the forum in which the claim or allegation is actually pending, and confirm that the lawyer's use of the information takes place there.
Confirm that each recipient needs the information to carry out that purpose, as an adviser, the lawyer's own defense counsel, or the deciding tribunal would. Treat anyone who decides nothing in the matter as outside the exception.
Confirm that the lawyer has made reasonable efforts to prevent inadvertent or unauthorized disclosure of, or access to, the information while sending and storing it. This step applies Rule 1.6(c), which no exception displaces.

Online Reviews and Press Statements

Rule 1.6(b)(5) opens in three situations: a controversy between the lawyer and the client, a criminal charge or civil claim based on conduct in which the client was involved, and allegations in any proceeding concerning the representation.¹⁹ Each presupposes that someone, whether the client, a third party, or an authority, has asserted something against the lawyer. That requirement matters most when a lawyer feels the urge to answer public criticism, because the urge is strongest where the exception is weakest. A review site is not a tribunal. No one there is deciding whether the lawyer did wrong, and nothing the lawyer posts will be weighed as evidence. A one-star review with no demand, grievance, or suit behind it fits none of the three situations comfortably, and the safe reading is that it fits none. Even when a qualifying occasion does exist, the limits on facts, audience, and forum still apply.

A lawyer's interest in her general reputation differs from the need the exception serves. If reputation justified answering criticism with client facts, every unhappy client's post would become an occasion for revealing that client's confidences. The Marzen court tied the confidentiality rule to the need "to ensure free and unrestrained communication without fear of betrayal."²⁰ Clients who knew a public complaint could unlock their files would have reason to hold back.

If the client later filed a bar complaint, that complaint would be a proceeding concerning the representation, and Ibarra could answer its allegations in the disciplinary forum with the facts reasonably necessary to do so. That later permission would not rescue the reply already posted, which was made before any proceeding existed and in a forum that decides nothing.

A lawyer who gets this wrong risks discipline. One attorney whose online conduct breached client confidentiality received a public reprimand and was told to use her state's law practice management services. She had petitioned for voluntary discipline, and the bar weighed in her favor that she had no prior discipline, acted without a dishonest or selfish motive, and had repaid a substantial portion of her fee.²¹

Lawyers who speak to the press often add that the facts are already public, and Marzen answers that argument. On a question of first impression, 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."²² The duty attaches to what the lawyer learned through the relationship, not to whether the facts are secret. A client who confided in a lawyer and then watched the lawyer repeat the story to reporters has been betrayed whether or not a courthouse file holds the same facts. If public availability released the lawyer, clients could never tell which of their confidences were safe.

Marzen and a review reply fail at different points. In Marzen a disciplinary proceeding was pending, so the exception was available for answering its allegations, and the lawyer lost because his media statements served a different purpose in a different forum.²³ A lawyer answering a review fails earlier: with no controversy, charge, claim, or proceeding, the exception never opens, and the question of forum never arises. In both settings the audience is the public, which decides nothing about the lawyer's conduct.

The lawyer who wants to respond can do so without revealing anything about the matter, for instance by stating that confidentiality duties prevent any discussion of client matters in that forum. A reply that reveals no information relating to the representation needs no exception, because Rule 1.6(a) forbids only the revealing of such information.²⁴ Silence is also permissible, and either course is safer than a defensive post that discloses client confidences. A lawyer unsure how to word a reply can consult an ethics adviser first, since whether a contemplated disclosure would be permitted is a question about the lawyer's own compliance with the Rules.²⁵