Ethics Opinion Articles - NC State Bar Journal

Mum's the Word

By Suzanne Lever

We all know that Rule 1.6 of the Rules of Professional Conduct governs a lawyer’s disclosure of client information. However, in addition to Rule 1.6, there are other rules pertaining to client information. These rules may distinguish between one or more of the following: (1) current and former clients; (2) use versus the disclosure of the information; and (3) information that is, or is not, “generally known.” Let’s take a look.

The Low Down

Rule 1.6(a) provides that a lawyer shall not reveal information acquired during the professional relationship with a client unless (1) the client gives informed consent; (2) the disclosure is impliedly authorized; or (3) one of the exceptions set out in Rule 1.6(b) applies. Interestingly, neither Rule 1.6, nor any of the other rules discussed below, actually refer to “confidential information.” Rather, these rules protect information “acquired during the professional relationship with a client” or information “relating to representation of a client.”

There is no distinction between current and former clients in Rule 1.6. The duties under Rule 1.6 continue after the termination of the relationship. Rule 1.6(b) does not contain an exception pertaining to client information that is “generally known.” The bottom line of Rule 1.6 is that a lawyer may never disclose information obtained during the representation of a client, even if the client becomes a former client, and even if the client’s information becomes “generally known.”

In contrast to Rule 1.6, which deals with disclosure of information, Rule 1.8(b) pertains to a lawyer’s use of client information. Rule 1.8(b) is limited to current clients. The rule provides that a lawyer may not use information relating to representation of a client to the disadvantage of the client, unless the client consents. There is no exception for information that is “generally known.” However, the prohibition in Rule 1.8(b) only applies if the lawyer is using the information “to the disadvantage of the client.” By implication, Rule 1.8(b) allows a lawyer to use (but not reveal) current client information, so long as the use is not disadvantageous to the client.

Say What?

Now on to what I believe is one of the more confusing rules addressing client information, Rule 1.9(c). Lawyers often fail to realize that, unlike Rule 1.9(a) and (b), which address a lawyer’s duties in a representation adverse to a former client, Rule 1.9(c) applies even when the lawyer has not undertaken a representation adverse to the former client.

Rule 1.9 is limited to former clients. Rule 1.9(c)(1) addresses use of a former client’s information, while Rule 1.9(c)(2) deals with disclosure of a former client’s information. Rule 1.9(c) is the only rule with an exception for information that is “generally known.” Rule 1.9(c)(1) allows a lawyer to use a former client’s information if it is not being used to the disadvantage of the former client or if it has become “generally known.” Rule 1.9(c)(2) prohibits disclosure of a former client’s information, regardless of whether the information has become generally known. (Rule 1.18, dealing with prospective clients, prohibits the use or disclosure of a prospective client’s information except as permitted by Rule 1.9.)

Let’s take a closer look at the distinctions present in the various rules. First, what is the difference between “using” client information and “revealing” it? In discussing the use of information related to a current representation (Rule 1.8(b)), comment [5] to Rule 1.8 provides:

Use of information relating to the representation to the disadvantage of the client violates the lawyer’s duty of loyalty. Paragraph (b) applies when the information is used to benefit either the lawyer or a third person, such as another client or business associate of the lawyer. For example, if a lawyer learns that a client intends to purchase and develop several parcels of land, the lawyer may not use that information to purchase one of the parcels in competition with the client or to recommend that another client make such a purchase. The Rule does not prohibit uses that do not disadvantage the client. For example, a lawyer who learns a government agency’s interpretation of trade legislation during the representation of one client may properly use that information to benefit other clients.

In each of the examples above, the lawyer is using the current client’s information without actually revealing the information. The use of a current client’s information is not permissible if it is being used to the disadvantage of the client. As noted above, a lawyer may use a former client’s information, even to the disadvantage of the former client, if it has become “generally known.” Rule 1.9(c)(1).

Duh!

So when is information “generally known”? Comment [8] to Rule 1.9 provides the following explanation:

The fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client. Whether information is “generally known” depends in part upon how the information was obtained and in part upon the former client’s reasonable expectations. The mere fact that information is accessible through the public record or has become known to some other persons does not necessarily deprive the information of its confidential nature. If the information is known or readily available to a relevant sector of the public—such as the parties involved in the matter—then the information is probably considered “generally known” [emphasis added].

The Restatement (Third) of The Law Governing Lawyers adopts an access approach to the question. If the information is easily accessible to the public, it is “generally known.” If special knowledge or skills are required to obtain the information, or if acquiring it would be expensive, then it is not. See Restatement (Third) of The Law Governing Lawyers § 59(d).

Exsqueeze Me?

Rule 1.6 provides that a lawyer may never reveal information acquired during the professional relationship with a client (with the noted exceptions), and Rule 1.9(c)(2) prohibits disclosure of a former client’s information, regardless of whether the information has become generally known. At first blush, this prohibition may seem overly broad and impractical.

For this reason, there is some support for the proposition that the rules should specifically state that information in the public domain should not be deemed protected information. See Laws. Man. on Prof. Conduct (ABA/BNA) 55:310. For example, the Restatement provides that a lawyer may not use or disclose confidential client information and defines confidential client information as “information relating to the representation of a client, other than information that is generally known.” Restatement (Third) of the Law Governing Lawyers §59, 60. Similarly, Massachusetts and Wyoming provide in their respective Rules of Professional Conduct that a lawyer “shall not reveal confidential information relating to representation of a client” (emphasis added). Mass. Rules of Prof’l Conduct, R. 1.6(a); Wyo. Rules of Prof’l Conduct R. 1.6(a).

Take a Chill Pill

I don’t believe that such a rule amendment is necessary. The Rules of Professional Conduct are “rules of reason” and should be applied with a common sense approach. Rule 0.2, Scope, cmt. [1]. To reveal is to make something that is secret or hidden publicly or generally known. Merriam-Webster Online Dictionary, 2012, merriam-webster.com/dictionary/reveal (1 Nov. 2012). Rule 1.6 and Rule 1.9 prohibit a lawyer from “revealing” information. Common sense would dictate that information that has been widely disseminated is no longer capable of being “revealed.” See SC Bar Ethics Advisory Comm., Op. 10-4 (2004).

In conclusion, lawyers need to familiarize themselves with the various rules pertaining to the protection of client information as well as the nuances particular to each rule. Lawyers should then take a conservative, yet common sense approach, to the application of these rules in their legal practice.

Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.

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