Limits on Revealing Information

Rule 1.9(c)(2) forbids a lawyer to “reveal information relating to the representation except as these Rules would permit or require with respect to a client.”¹ To reveal is to communicate the information to someone else, and the text offers one way out: the cross-reference to what the Rules would permit or require with respect to a client.

The use prohibition in Rule 1.9(c)(1) makes a useful contrast. It bars use of the same information only when the use is to the former client’s disadvantage, and it stops applying once the information has become generally known.² Subparagraph (c)(2) contains neither limit, and those two silences organize what follows: the revealing prohibition has no disadvantage element, and it has no generally known carve-out. A lawyer can stay inside (c)(1) and still violate (c)(2). Both clauses share the cross-reference to what the Rules permit or require with respect to a client, which the later section on exceptions borrowed from Rule 1.6 explains once for both.

Disclosure Without Harm

Subparagraph (c)(1) asks whether the former client was disadvantaged; (c)(2) never does. Its text has no disadvantage element, so the revelation is itself the violation, complete when the information reaches a listener. A lawyer who shows that a disclosure hurt no one has proved a fact the rule does not use.

Permission, not harmlessness, is what excuses a disclosure. Rule 1.6(a) allows disclosure only with the client’s informed consent, with implied authorization to carry out the representation, or through a Rule 1.6(b) exception,³ and (c)(2) points to that list. The secondary source states the division in one sentence: a lawyer may not misappropriate confidential information and use it to a former client’s disadvantage, or “disclose it without permission of the former client or as allowed by an exception to confidentiality under the rules.”⁴ The use half of the duty asks about disadvantage. The disclosure half asks about permission.

Leaving harm out makes sense given what the duty protects. The duty to protect a client’s confidences is part of “the sacred trust of every lawyer,”⁵ and the former client, not her lawyer, decides who learns her affairs. A harm test would hand that decision to the lawyer at the moment the lawyer most wants to talk. It would also be a poor test, because a remark that seems idle can travel to a competitor, an opposing party, or a relative of the former client.

The friendly tone, the harmless listener, and the absence of injury all matter under the use prohibition and count for nothing under the revealing prohibition. An answer that stops at “nothing bad happened” tests the disclosure against the wrong paragraph. Whether the result changes if the press has already reported the amount is the public-information question taken up below.

What turns a revelation into a permitted one is a permission the Rules supply. The clearest example is the former client’s own informed consent.

The lender receives the same information Hernandez could not mention at the reception, because (c)(2) yields to what Rule 1.6(a) permits with respect to a client, and informed consent is one of the permissions that rule lists.⁶ Consent is informed only when the client has received, as Rule 1.0(e) directs, adequate information and explanation about the material risks and reasonably available alternatives. The explanation can be short when the disclosure looks innocuous and the client understands what is being revealed; it must grow with the value of the information and the seriousness of the consequences.⁷ The other permissions get their own section later. Mildness is not among them.

Florida Bar v. Dunagan shows what the inquiry looks like once a revelation has been made. Dunagan had represented Paula Leucht and then wrote letters using information from that representation to her disadvantage. The court approved the referee’s conclusion that the letters violated rule 4-1.9(b), because the disclosures were not permitted under rule 4-1.6. The referee had also found the letters impermissible under rule 4-1.6(b)(2), which permits revealing information to prevent death or substantial bodily harm to another, and Dunagan did not dispute that finding.⁸

Dunagan tested a use of information, so it does not itself decide a harmless revelation. Its method carries over. The court measured the letters against the exception available to the lawyer and found that none fit. Under (c)(2) that exception inquiry is the entire analysis, because no disadvantage question comes first.

The sanction discussion points the same way. The standard the court quoted calls suspension appropriate when a lawyer “knowingly reveals information relating to the representation of a client not otherwise lawfully permitted to be disclosed and this disclosure causes injury or potential injury to a client.”⁹ Injury can therefore bear on how severely a lawyer is disciplined, and the words “potential injury” show that even the sanction does not wait for harm to occur. Whether (c)(2) was violated at all turns only on the revelation and the absence of a permission.

Revealing Public Information

Paragraph (c) treats public information unevenly. Subparagraph (c)(1) lets a lawyer use information that has become generally known,¹¹ while (c)(2) has no clause about generally known information.¹² By the text, then, a fact the lawyer may put to work for a later client is not automatically a fact the lawyer may repeat. The secondary source reads the rule that way: appropriate use of generally known information is distinguished from the lawyer’s affirmative revelation of it.¹³

The category itself is familiar. One court treats information as generally known when the media has widely disseminated it to the public, or when any reasonably prudent lawyer who had never represented the former client would typically obtain it, and it adds that having once served a client does not stop a lawyer from using such information for a later client.¹⁴ That statement speaks to use. It does not say a lawyer may confirm or repeat the information.

Using a public fact and confirming it do different things to the former client. A lawyer who draws on a published account while working for a later client adds nothing to its circulation. A lawyer who confirms the account speaks as the person who held the facts in trust, and the former client must then hear her own former lawyer vouch for what the public has only heard. The secondary source names that as the concern: even when information appears widely disseminated, the lawyer generally should not be a source of its further distribution, and when the information is sensitive, the former client should not have to bear “the ignominy and embarrassment” of the confirmation.¹⁵

The headlines do not rescue him, and the instinct that they should combines two mistakes. It reads the generally known clause of (c)(1) into (c)(2), where the text has none. It also imports a harm inquiry, reasoning that confirming what the public already has hurts no one, although (c)(2) never asks whether the former client was disadvantaged.

The caution has a limit. Because (c)(1) plainly permits the lawyer’s use of generally known information, the secondary source observes, that permission “implicitly might include such limited disclosure as necessary to make meaningful and concrete use of the information.”¹⁶ A lawyer who relies on a public fact in a pleading or a letter has to state it, and a ban on stating it would leave the permission to use empty. This accommodation is an interpretation, not a clause of (c)(2). The concern for sensitive information suggests it fits best where the fact is impersonal and wholly public, such as the basic nature of a business entity.

The information is public in both scenes, and that is the only fact the use clause cares about. The scenes differ in the kind of information and in what the lawyer does with it. The interview involves a sensitive family dispute and has the lawyer vouch for it as someone who was there. The pleading mentions a basic business fact and confirms nothing. Because the room for limited disclosure is narrow and rests on a reading rather than rule text, a question about repeating public information is best run in order, stopping at the first step that fails.

Exam Analysis Steps

Ask whether the information has become generally known, meaning it has been widely disseminated by the media or is the kind a reasonably prudent lawyer who never represented the client would typically obtain.¹⁷ If it has not, no accommodation is available, and (c)(2) applies with only its cross-reference to the Rules.
Ask whether the lawyer is making a use that (c)(1) permits, since the limited disclosure the source tolerates derives from the permission to use and has no independent footing.
Ask whether the information is impersonal and non-sensitive, like the basic nature of a business entity, or personal and sensitive, like a family dispute, and treat the second kind as information the lawyer should not confirm or elaborate.
Ask whether the lawyer states only what the use requires, or confirms, elaborates, or vouches as someone who learned the fact in the engagement, because anything beyond the need of the use makes the lawyer a source again.

The safe course, on an exam and in practice, is to decline to confirm a sensitive fact about a former client even when it is already in the headlines. Comment is appropriate only if the former client consents or a permission borrowed from Rule 1.6 applies, which the later sections on exceptions develop.