UNITED STATES DEPARTMENT OF LABOR

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ADMINISTRATIVE REVIEW BOARD

JACK R. T. JORDAN ,

Complainant,

ARB Case No. 06-105

ALJ CASE No. 2006-S0X-0041

SPRINT NEXTEL CORPORATION

Respondent.

REDACTED BRIEF OF THE SECURITIES AND EXCHANGE COMMISSION,

AMICUS CURIAE

DAVID M. BECKER

General Counsel

MARK D. CARN

Deputy General Counsel

RICHARD M. HUMES

Associate General Counsel

THOMAS J. KARR

Assistant General Counsel

WOO S. LEE

Senior Counsel

Securities & Exchange Commission

100 F Street, N.E,

Washington D.C. 20549-8010

(202) 551-5163 (Karr)

Table of Contents

INTEREST OF THE SECURITIES AND EXCHANGE COMMISSION

STATEMENT OF THE CASE '

ARGUMENT

II.

AN EXPRESS PROVISION OF FEDERAL LAW GOVERNS THE PRIVILEGE

ISSUES IN THIS WHISTLEBLOWER PROCEEDING

THE ATTORNEY-CONDUCT RULES ARE AN EXPRESS PROVISION OF

FEDERAL LAW THAT PERMIT USE OF PART 205 REPORTS CONTAINING

CLIENT CONFIDENCES IN SOX SECTION 806

PROCEEDINGS

Attorneys May Use Part 205 Reports Whenever Their

Compliance with Part 205 is Uln Issue," Including to

Establish a Whistleblower Claim

Plain Meaning of the Regulation

The Commission's Comments in Adopting the

Regulation Support the Attorney-Whistleblower's

Use of Part 205 Reports

Even if Federal Common Law Applied, Sprint's Argument is

Unavailing

CONCLUS I ON

IN SOX WHISTLEBLOWER PROCEEDINGS, CLIENT CONFIDENCES COULD BE

REVIEWED IN CAMERA AND PRODUCED SUBJECT TO ApPROPRIATE PROTECTIVE

ORDERS TO PROTECT THOSE CONFIDENCES

TABLE OF AUTHORITIES

Cases

Alexander v. Tandem Staffing Solutions, Inc.,

881 So.2d 607 (Fla. App.

2004) .. ,'

Allstate Ins. v. Hague,

449 U.S.

302

(1981)

(1997)

Auer v. Robbins,

519 U.S.

Bechtel

452

Constr~

Co. v. Sec'y of Labor,

( 11 th C i r.

5 0 F . 3d 92 6

19"95) . . . . .. . . . . . . . . . . . . . . . . .' . . . . . . . 16

Batterton v. Francis,

432 U.S.

416

Blackburn v. Reich,

79 F.3d 1375

(4th Cir. 1996)

Botsford v. Blue Cross & Blue Shield of Montana, Inc.,

314 F.3d 390

(9th Cir. 2002)

Burkhart v. Semi tool, Inc.,

5 P.3d 1031 (Mont. 2000)

Chevron, U.S.A., Inc. v. NRDC,

467 U.S.

837

(1984)

Chrysler Corp. v. Brown,

441 U.S.

281

(1979)

"Clemes v. Del Norte County Unified Sch. Dist.,

843 F.Supp.

583

(N.D. Cal.

1994)

Coons v. Secretary of U.S. Dep't of Treasury,

383 F.3d 879

(9th Cir. 2004)

Crews v. Buckman Labs Int' 1, Inc.,

78 S.W.3d 852 (Term.

2002)

Dixon v. United States,

381 U.S.

(1965)

Forest Watch v. U.S. Forest Serv.,

410 F. 3d 115 (2nd Cir. 2005)

Griffin Indus. v. United States,

27 Fed. Cl.

183 (Fed. Cl.

1992)

Haley v. Fiechter,

953 F.Supp.

1085

(E.D. Mo.

1997)

Haley v. Retsinas,

138 F.3d 1245

(8th Cir.

1998)

Heckman v. Zurich Holding Co. of Am.,

242 F. R . D .

606

(D .

Kan .

2 0 0 7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8

Herman & MacLean v. Huddleston,

459 U.S.

375

(1983)

Illinois v. Milwaukee,

406 U.S.

(1972)

8,8-9

Kachmar v. Sunguard Da ta Sys tems, Inc.,

109 F. 3d 173

(3d Cir. 1997)

Kappler v. Shalala,

840 F.Supp.

582

(N. D. Ill. 1994)

Kupiec v. Republic Fed. Say. & Loan Ass'n,

512 F.2d 147

(7th Cir. 1975)

(6th Cir. 1997)

In re Laurain,

113 F.3d 595

Long Island Care at Home Ltd. v. Coke,

551 U. S.

158 (2007)

181

Lowe v. SEC,

472 U.S.

(1985)

Lugosch v. Pyramid Co.,

435 F.3d 110 (2d Cir. 2006)

Martin v. OSHA,

499 U. S .144

(1991)

(1981)

Milwaukee v. Ill.,

451 U.S.

304

National Ass'n of Home Builders v. Defenders of Wildlife,

551 U.S.

644

(2007)

Neal v. Honeywell, Inc.,

826 F.Supp.

266

(N.D.

Ill.

1993)

Oneida County, N.Y. v. Oneida Indian Nation of N.Y. State,

470 U.S.

226

(1985)

Pfizer Inc. v. Heckler,

735 F.2d 1502

(D.

C. Cir. 1984)

Pinter v. Dahl,

486 U.S.

622

(1988)

Press v. Quick & Reilly, Inc,

218 F.3d 121

(2'd Cir. 2000)

Roth v. Perseus, LLC,

(2d ~ir. 2008)

522 F.3d 242

Schaefer v. GE Co.,

2008 U.S. Dist. LEXIS 5552(D. Conn.

Jan.

22,

2008) . . . . 18, 28

SEC v. Ralston-Purina Co.,

346 U.S.

119

(1953)

(2002)

SEC v. Zandford,

535 U.S.

813

Siedle v. Putnam Inv.,

147 F.3d 7

(1st Cir. 1998)

Sompo Japan Ins. Co. of Am. v. Union Pac. R.R.,

456 F. 3d 54

(2d Cir. 2006)

Spang v. United States,

791 F.2d 906

(Fed. Cir. 1986)

Spratley v. State Fann Mut. Auto. Ins. Co.,

P.3d 603

(Utah 2003)

Tello v. Dean Witter Reynolds, Inc.,

410 F.3d 1275

(11th Cir. 2005) ... ~ . . . . . . . . . . . . . . . . . . . . • . . . 15

Thomas Jefferson Univ. v. Shalala,

512 U.S.

504

(1994)

United Cigar Whelan Stores Corp. v. United States,

113 F.2d 340

(9th Cir. 1940)

United States v. Bucher,

375 F.3d 929

(9th Cir. 2004)

United States v. MO$cony,

927 F.2d 742

(3d Cir. 1991)

23, 25

Uni ted States v. Valentine,

401 F.3d 609

2007)

(5th Cir. 2005)

Van Asdale v. Int' 1 Game, Tech.,

498 F.Supp.2d 1321

(D. Nev.

Waymire v. Norfolk & W. Ry. Co.,

218 F.3d 773

(7th Cir. 2000)

Willy v. Coastal Corporation

2004 DOL Ad. Rev. Bd. LEXIS 19

(ARB Feb 27, 2004)

passim

Willy v. ARB

423 F.3d 483

(5 ili Cir. 2005)

passim

Statutes

Sarbanes-Oxley Act Section 307,

107 P.L. 204, Title III, sec. 307

Sarbanes-Oxley Act Section 806,

107 P.L., Title VIII, sec. 806

15 U.S.C. 779

15 U.S.C. 78rn(a)

15 U.S.C. 78rn(b)

15 U.S.C. 7245

18 U.S.C. 1514A(a) . .'

passim

Regulations

17 C.F.R. 1980.108(b)

17 C.F.R. 205

....................................... ,

17 C.F.R. 205.2(b)

17 C.F.R. 205.2(i)

1 7 C. F . R. 205. 3 (b)

17 C.F.R. 205.3 (c)

17 C.F.R. 205.3 (d) (1)

29 C.F.R. 18.46

29 C.F.R. 18.1(a)

29 C.F.R. 18.41

Federal Rule of Civ. P.

passim

3,4

;

passim

12 (b) (6')

Rules of Professional Responsibility

ABA Model Rule 1.6 (b) (5)

Ala. Rule 1.6 (b) (2)

Alaska Rule 1.6 (b) (2)

Ariz. Rule 1.6(d) (4)

passim

, .18

Ark. Rule 1.6 (b) (5)

Colo. Rule1.6(c)

Conn. Rule 1.6 (d)

','

, .. 18

Del. Rule 1.6(b) (5)

Fla. Rule 4-1.6 (c) (2)

Ga. Rule 1.6(b) (J,) (iii)

Haw. Rule 1.6 (c) (3)

Idaho Rule 1.6 (b) (5)

Ind. Rule 1.6 (b) (5)

" .18

Ia. Rule 32:1.6(b) (5)

Kan. Rule 1.6 (b) (3)

Ky. Rule 1.6(b) (2)

La. Rule 1.6(b) (2)

Md. Rule 1.6(b) (5)

Mass. Rule 1.6(b) (2)

Minn. Rule 1.6 (b) (8)

Miss. Rule 1.6(b) (2)

Mo. S. Ct. Rule 4-1.6(b) (2)

Mont. Rule 1.6 (b) (3)

Neb. Rule 1.6 (b) (3)

Nev. Rule 156 (3) (b)

N.H. Rule 1.6(b) (2)

N.J. Rule 1.6(d) (2)

N.M. Rule 16-106 (D)

N.C. Rule 1.6(b) (6)

N . D . Rul e 1. 6 (e)

N.Y. D.R. 4-101-c

24, 25-26

Ohio Rule 1.6(b) (5) .1

Okla. Rule 1.6 (b) (3)

Or. Rule 1.6(b) (4)

Pa. Rule 1.6(b) (4)

R.I. Rule 1.6 (b) (2)

S.C. Rule 1.6(b) (2)

S.D. Rule 1.6(b) (3)

Tenn. Rule 1.6(b) (3)

Tex. Rule 1.6 (c) (5)

Utah Rule 1.6(b) (3) . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Vt. Rule 1.6 (c) (2)

Va. Rule 1.6(b) (2)

Wash. Rule 1.6 (b) (2)

W. Va. Rule 1.6 (b) (2)

18 '

Wise. Rule 1.6 (c) (2)

Wy. Rule 1.6(b) (2)

Other Sources

ABA Formal Opinion 01-424 (Sept. 22, 2001)

ABA Preliminary Report of the ABA Task Force on Corporate

Responsibility (Jul. 16, 2002)

Remarks of Sen. Jon Corzine

Cong. Rec. S6556 (Jul. 10, 2002)

Remarks of Sen. John Edwards

Congo Rec. S6551 (Jul. 10, 2002)

Remarks of Sen. Mike Enzi

Congo Rec. S6555 (Jul. 10, 2002)

1 Geoffrey C. Hazard & W. William Hodes, The Law of

Lawyering . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . 15, 19

Oregon Formal Ethics Opinion 136 (1994)

Securities & Exchange Commission, Implementation of Standards of

Professional Conduct for Attorneys,

68 Fed. Reg. 6296 (Feb. 6, 2003)

2, 17, 21

Securities & Exchange Commission, Release No. 33-8150, ,

67 Fed. Reg. 71669 (Nov. 21, 2002)

Supreme Court Standard 503

56 F.R.D. 183 (1972)

23, 25

Introduction

Pursuant to 29 C. F. R. 1980.108 (b), the Securities and Exchange

Commission

curiae,

("SEC" or "Commission") submits this brief as amicus

to address the issue of whether an attorney for a public

company who reports evidence of a material violation of the federal

securities laws "up the ladder" within that company, as required by

the

Commission's

rules

promulgated

under

Section

307

the

Sarbanes-Oxley Act ("SOX"), may introduce into evidence that report

and any responses to it, when they are material to establishing a

claim of illegal retaliation under SOX Section 806.

The Commission

respectfully

urges

the

Board

conclude

that

whistleblower may introduce such evidence because,

attorney

among other

reasons, it is permitted by Commission rules promulgated pursuant

to SOX.

INTEREST OF THE SECURITIES AND EXCHANGE COMMISSION

The

Commission

the

agency

administration and enforcement of the

including

those

provisions

responsible

federal

establishing

for

the

securities laws,

the

registration,

disclosure and periodic-reporting obligations of public companies.

See 15 U.S.C.

77g; 15 U.S.C.

public . companies

play

78m(a), (b).

significant

Attorneys employed by

role

assisting

those

companies in complying with these important obligations, which are

designed to protect investors and the capital ,markets.

Commission has observed,

"[a] ttorneys

[]

As the

play an important and

expanding role in the internal processes and governance of issuers,

ensuring

compliance

requirements,

securities

ensuring

with

including

laws. Ill!

that

whistleblowers

reporting

and

requirements

mandated

Commission

has

The

issuers

who

applicable

report

not

management

the

strong

retaliate

disclosure

interest

against

evidence

federal

iIi

attorney

material

violations of the securities laws.

Congress, in Section 307 of SOX, directed the Commission to

promulgate "minimum standards of professional conduct for attorneys

appearing

issuers,

and

practicing

"including a

before

rule"

the

agency"

requiring

them to

report

violations "up the ladder" wi thin the issuer,

rules

are

"in

investors. lI~j

the

public

In response

material

so long as those

interest

and

Congressional

this

for

representing

the

protection of

mandate,

the

See Securities and Exchange Commission, Implementation of

Standards of Professional Conduct for Attorneys, 68 Fed.

Reg. 6296, 6325 (Feb. 6, 2003); see also Congo Rec. S6551

(Jul. 10, 2002) (remarks of Sen. Edwards) ("wherever you see

corporate executives and accountants working, lawyers are

virtually always there looking over their shoulder"); Congo

Rec. S6555 (Jul. 10, 2002) (remarks of Sen. Enzi)

("attorneys are hired to aid the corporation and its

accountants in adhering to Federal securities law") i Congo

Rec. S6556 (Jul. 10, 2002) (remarks of Sen. Condne) ("The

bottom line is this. Lawyers can and should play an

important role in preventing and addressing corporate

fraud. II) i "The Preliminary Report of the American Bar

Association Task Force on Corporate Responsibility," (Jul.

16, 2002) ("our system of corporate governance has long

relied upon the active oversight and advice of independent

participants in the corporate governance process, such as .

. outside counsel.").

15 U.S.C. 7245.

Commission promulgated its Part 205 Attorney-Conduct Rules,}/ which

require an attorney representing an issuer before the Commission to

report material violations

Specifically,

Section

"up the ladder ll within that

205.3(b)

of -the

issuer.

Attorney-Conduct

Rules

requires an attorney to report evidence of a material violation (to

make a

officer.

"Part

205 report )!I

first

the

does

not

receive

responsell~ from the

attorney

issuer's chief

legal

"appropriate

chief legal officer, the attorney must continue

reporting up the chain of command, even to the board of directors,

until an appropriate response is received.§/

17 C.F.R. Part 205.

See 68 Fed. Reg. 6296 et seq.

The Attorney-Conduct Rules define "material violation ll to

encompass a material violation of an applicable United

States federal or state securities law, a material breach of

fiduciary duty arising under United States federal or state

law, or a similar

material violation. 17 C.F.R. 205.2(i).

An "appropriate response ll is "a response to an attorney

regarding reporte~ evidence of a material violation as a

result of which the attorney reasonably believes:

(1)

(2)

(3)

... no material violation ... has occurred, is

ongoing, or is about to occur;

... the issuer ... has adopted appropriate

remedial measures ... ; or

... the issuer ... has retained or directed an

attorney to review the reported evidence of a

material violation.

17 C.F.R. 205.2 (b).

§!

17 C.F.R. 205.3(b)

An alternate "reporting Upll process is

available where the issuer has established a qualified legal

compliance committee ("QLCC

See 17 C.F.R. 205.3(c). In

that case, an attorney who reports evidence of a material

violation to the QLCC satisfies the attorney's reporting

obligation and is not required to assess whether .the

When an attorney-whistleblower makes a Part 205 report, and

believes he or she has been retaliated against for having made that

report, one recourse is to file a claim against his or her employer

under SOX Section 806, which prohibits an issuer from retaliating

against an employee who reports potential material violations of

the federal securities laws.

A central issue in a Section 806 whistleblower proceeding

brought by an attorney, including this one, is whether the attorney

may introduce his or her Part 205 report--which may constitute an

attorney-client

communication,

contain

client

confidences,

both--in establishing that he or she is a bona fide whistleblower

under SOX.

In promulgating the Part 205 rules,

the Commission

specifically addressed whether attorneys may use Part 205 reports

in proceedings where their compliance with Part 205 is in issue.

Section

205.3 (d) (1)

response thereto,

any

states

that

any

Part

205

report,

or the

"may be used by an attorney in connection with

investigation,

proceeding,

litigation

attorney's compliance with this part is in issue."

is entirely consistent with the

majority of state bars,

which

the

This provision

rule--established by the vast

the ABA's Model Rules of Professional

Conduct' ("Model Rules"), as well as the federal common law--that an

attorney may use

client

confidences

defenses" in litigation against a client.

issuer's response is appropriate.

support

"claims or

Were the Commission's

17 C.F.R.

205.3 (c) (1).

Part 205 rules interpreted as not permitting attorneys to use their

Part

205 reports to

substantiate retaliation or discrimination

claims, Congress's interest in protecting whistleblowers, and the

Commission's interest in encouraging_attorneys to comply with its

Part 205 rules, would be seriously undermined.

We understand that public companies may have concerns about

the use of client confidences in attorney-whistleblower proceedings

because

the

risk

that

they

may

disclosed

publicly.

Accordingly, as we address below (pp. 26-29), we respectfully urge

the

Board to

("ALJs"),

permitted under the Department of Labor's Rules of Practice,

C.F.R.

encourage Administrative

18.46,

issue

"protective

Law Judges

other

orders,"

when

appropriate, to minimize public disclosure of client confidences

and to narrow their use in Section 806 proceedings, consistent with

the

practice

~afeguarding

client

confidences

observed

attorney-client disputes in federal and state courts.

STATEMENT OF THE CASE

Jack R. T. Jordan ("Jordan") alleges in this proceeding that

he was terminated from his employment as an in-house attorney in

Sprint-Nextel Corp.'s ("Sprint") Corporate Secretary and Corporate

Governance group

[REDACTED].

Jordan specifically alleged that he made his reports

pursuant to the Commission's Part 205 rules.

Motion for Summary Decision at 2-3.

complaint,

arguing

that

because

See, e.g., Jordan's

Sprint moved to dismiss the

Jordan's

claims

are

entirely

dependent on the disclosure of privileged communications (i. e., his

Part 205 report), and no legally cognizable exception permits the

disclosure of such communications, he has no admissible evidence to

support his claim of having engaged in protected whistleblowing.

On March 14, 2006, the ALJ, relying on federal common law and

the Model Rules, and without any reference to Section 205.3(d) (1)

of the Commission's rules, denied Sprint's motion, explaining that

Jordan is entitled to use attorney-client communications to support

his

SOX retaliation claim.

The ALJ explained that Model Rule

1.6(b) (5), which was adopted in 1983,

"expanded the instances in

which an attorney might rely on otherwise confidential information

to include his. . .

a~firmative

use of suCh information in a claim

of retaliatory discharge against a former employer."

(emphasis

allegation

that

added).

was

ALJ Decision

The ALJ further noted that

terminated

for

reporting

Jordan's

evidence

material violations of federal securities laws as required under

Part

205

amounted to

conduct

that

"falls

squarely within the

parameters" of the Model Rule.

Sprint petitioned the Board for interlocutory review.

On June

19, 2008, the Board granted Sprint's petition, concluding that the

issue of whether attorneys may use client confidences to establish

claims of retaliatory discharge was sufficiently "important" to

warrant interlocutory review.

On appeal,

Sprint maintains that

nothing in Part 205 speaks to whether an attorney can use client

confidences to support his or her SOX· whistleblower claim, and

argues that the federal

common law bars the use of privileged

communications to support such a claim.

Jordan argues,

inter alia,

Commission's Part 205

In his answering brief,

that because his compliance with the

rules

"in issue"

in this litigation,

Section 205.3(d) (1) of the Commission's rules permits him to use

his Part 205 report, and any response thereto, in support of his

Section 806 claim.

ARGUMENT

I. .

AN EXPRESS PROVISION OF FEDERAL LAW GOVERNS THE PRIVILEGE ISSUES IN THIS

WHISTLEBLOWER PROCEEDING.

The issue of whether the attorney-client privilege may be

asserted

bar

the

introduction

evidence

federal

whistleblower action between an attorney and his former issuer

client

"is an evidentiary matter that

question of federal law."l/

should be resolved as a

Federal law is governed primarily by

Willy v. Coastal Corp., 2004 DOL Ad. Rev. Bd.LEXIS

19 (ARB Feb. 27, 2004) (internal citations omitted), rev'd

on other grounds sub nom Willy v. ARB, 324 F.3d 483 (5th

Cir. 2005).

express provisions in statutes or regulations.~/ In the absence of

such express provisions,

resolution. "2/

"we look to the federal common law for

Here, however, an express federal law provision

Section 205.3(d) (1)

- directly addresses the privilege question.

Even if Section 205.3(d) (1)

conflicted with federal common law,

Section 205.3(d) (1) would trump.~/ As we discuss below, however,

See Milwaukee v. III./ 451 U.S. 304, 314 (1981); Chrysler

Corp. v. Brown, 441 U.S. 281, 295 (1979) ("[P]roperly

promulgated, substantive agency regulations have the force

and effect of law.") (internal quotation marks omitted);

Batterton v. Francis, 432 U.S. 416/ 425 n. 9 (recognizing

that regulations "issued by an agency pursuant to statutory

authority and which implement the statute, as/ for example/

the proxy rules issued by the Securities and Exchange

Commission . . . have the force and effect of law.")

(quoting U.S. Dep't of Justice, Attorney General's Manual on

the Administrative Procedures Act 30 n. 3 (1947)).

Willy, 2004 DOL Ad. Rev. Bd. LEXIS 19; see also/ e.g./

Milwaukee, 451 U.S. at 314 (federal common law is "resorted

to in the absence" of substantive federal law) (internal

quotation marks omitted); Sompo Japan Ins. Co. of Am~ v.

Union Pac. R.R., ~56 F.3d 54/ 74 (2d Cir. 2006) (federal

common law "only applies in the absence of a relevant

statute.") .

See Oneida County/ N.Y. v. Oneida Indian Nation of N.Y.

State, 470 U.S. 226, 237 (1985) (federal common law is

preempted where specific federal law has spoken to the

particular issue); Botsford v. Blue Cross & Blue Shield of

Montana/ Inc., 314 F.3d 390, 399 (9th Cir. 2002) (where

federal law preempts claim, court need not look to federal

common law); Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773,

777 (7th Cir. 2000) (when a federal agency empowered by

Congress to establish rules under a statute "has promulgated

such regulations, federal common law .

on these issues

[is] necessarily displaced"); Kupiec v. Republic Fed. Say. &

Loan Ass/n, 512 F.2d 147, 152 (7th Cir. 1975) (because

relevant federal agency had "fleshed out" its regulations,

"federal common law is, therefore, no longer applicable in

this area"); cf. Illinois v. Milwaukee, 406 U.S. 91, 107

no such conflict exists here,

as Section 205.3(d) (1)

is entirely

consistent with the current federal common law on this issue. ill

In promulgating Section 205.3 (d) (1), the Commission acted well

within its authority.

Federal agencies have

~the

power to adopt

regulations to carry into effect the will of Congress as expressed

by [a] statute."

The

clear

Dixon v. United States, 381 U.S. 68, 74

language

SOX

Section

307

demonstrates

(1965).

that

the

Commission's promulgation of Section 205.3 (d) (1) is consistent with

that

Congressional

mandate.

Congress,

statute,

explicitly

(1972) (~new federal regulations may in time preempt the

field of federal common law") .

!.!!

Sprint initially argued before the ALJ that Kansas law

applied because it is ~the jurisdiction where Jordan was

practicing." See, e.g., Respondent's Supp. Brief in Support

of its Motion for a Protective Order (Feb. 13, 2006) at p.

12, Ex. 8 at p. 1; see Attachment B to Respondent's Motion

for a Protective Order (Jan. 17, 2006) at 2; Respondent's

Reply in Support of its Motion to Dismiss (Mar. 3, 2006) at

4 n. 2, 12. Now, Sprint suggests that New York law applies

because Jordan is a member of the New York bar. Sprint's

Opening Brief at 12-13. As an initial matter, Jordan's New

York bar membership is irrelevant.

The question at issue

here is solely. one of federal law.

See Sprint's Opening

Brief at 9 (~Evidentiary issues, such as the application of

the attorney-client privilege, are governed by federal law

in cases that arise under 'federal question' jurisdiction").

Furthermore, to the extent this issue is governed by state

law, which it is not, Kansas law would govern (1) as the

facts at issue in this litigation occurred in Kansas, where

Sprint was headquartered, and where Jordan resided and

worked during the relevant period, and (2) Jordan acquired

the relevant client confidences in Kansas.

See Allstate

Ins. v. Hague, 449 U.S. 302, 312-13 (1981).

Kansas's state

bar rule, as noted below, is consistent with both Model Rule

1.6(b) (5) and Section 205.3(d) (1) of the Commission's

Attorney-Conduct Rules.

See FN 25.

instructed the Commission to issue an "up the ladder" reporting

requirement

for

issuer's

lawyer

who

believes

material

violation of the federal securities laws to have occurred. 121

the same time,

and in the same statute,

Congress provided tnat

employees reporting to an issuer information about a

suspected

violation of the federal securities laws should be protected from

retaliation. l l l

Congress

further

empowered

the

Commission

promulgate minimum standards of professional conduct in the "public

interest

and

for

the

protection

investors."lll

Section

205.3(d) (1) furthers the intent and goals of Congress as expressed

Permitting the use of Part 205

in these statutory provisions.

reports when they are "in issue" protects genuine "up the ladder"

reporting.

Furthermore, permitting the use of such communicati'ons

Section

aggrieved

806

proceedings

protects

any

purported

retaliation

attorney-whistleblowers

their

employers .12.1

107 P.L. 204, Title III, sec. 307(1) ("the Commission shall

issue rules.

. including a rule--requiring an attorney to

report evidence of a material violation of securities law").

107 P.L. 204, Title VIII, sec. 806.

107 P.L. 204, Title III, sec. 307 ("the Commission shall

issue rules, in the public interest and for the protection

of investors, setting forth minimum standards of

professional conduct for attorneys appearing and practicing

before the Commission in any way in the representation of

issuers. " ).

Indeed, in the underlying proceedings, the ALJ commented:

"Congress created a statute which requires attorneys to

report conduct the attorney reasonably believes constitutes

a violation of federal securities laws.

At the same

time, Congress provided that individuals who report such

Finally,

permitting

communications

is well

attorney-whistleblowers

use

such

accepted as consistent with the minimum

standards of attorney conduct. l l/

THE ATTORNEY-CONDUCT RULES ARE AN EXPRESS PROVISION .OF FEDERAL LAW

II.

THAT PERMIT USE OF PART 205 REPORTS CONTAINING CLIENT CONFIDENCES IN

SOX SECTION

806 PROCEEDINGS.

ATTORNEYS MAy USE PART 205 REPORTS WHENEVER THEIR COMPLIANCE WITH

PART

205 Is "IN ISSUE," INCLUDING TO ESTABLISH A WHISTLEBLOWER

CLAIM.

The Commission's Part 205 Attorney-Conduct Rules explicitly

permit attorney-whistleblowers to rely on their Part 205 reports in

circumstances where their compliance with Part 205 is

See

C.F.R.

205.3 (d) (1).

Specifically,

~in

issue."

Section 205.3 (d) (1)

provides that:

Any

report

under

this

section

(or

the

contemporaneous

record

thereof)

any

response .thereto

(or the

contemporaneous

record thereof) may be used by an attorney in

connection with any investigation, proceeding,

litigation

which

the

attorney's

compliance with [Part 205] is in issue.

violations are to be protected from retaliation. .

Congress could not have intended that attorneys employed by

publicly-traded corporations be required to report suspected

wrongdoing, but that they then be denied the whistleblower

protections of [SOX] because the wrongdoing they reported

was discovered while performing legal work for their

employer." Jordan v. Sprint Nextel, 2006~SOX-00041 at 16

(ALJ Mar. 14, 2006).

Rule 205.3(d) (1) merely allows the same use of client

confidences that is permitted under the ABA Model Rules,and

the federal common law, as well as the laws of 45 states.

See Section II(A) (2).

C.F.R.

The

205.3 (d) (1) .

plain language

this

provision

supports its application to whistleblower claims where the report

made

obligations

relevant to the claim against the attorney's issuer-employer.

addition,

attorney pursuant

the

Commission's

his

comments

Part

205

promulgating

Section

205.3(d) (1) also support this interpretation.

THE PLAIN ~ING OF THE REGULATION.

In construing Section 205.3(d) (1),

we Umust begin with the

words in the regulation and their plain language."!?/

The natural

reading of its language is that an attorney may use his or her Part

205 report in a Section 806 proceeding so long as the report is uin

issue."

In other words,

probative and material

long

to the

the

Part

205

report

attorney-whistleblower's

claims,

allegations, or replies to defenses, the plain meaning of Section

205.3 (d) (1) explicitly authorizes an attorney to use his or her

Part 205 report and any

, responses thereto in support of a Section

806 retaliation claim.

Sprint,

however,

Section 205.3(d) (1»)

contends

(albei t

wi thout any reference to

that nothing in the Commission's Attorney-

Pfizer Inc. v. Heckler, 735 F.2d 1502, 1507 (D.C. Cir.

1984); see also, e.g., Forest Watch v. U.S. Forest Serv.,

410 F.3d 115, 117 (2d Cir. 2005) (a rule's plain meaning

controls unless it leads to absurd result); United States v.

Bucher, 375 F.3d 929, 932 (9th Cir. 2004) (uTo interpret a

regulation, we look first to its plain language."); In re

Laurain, 113 F. 3d 595, 597 (6th Cir. 1997) (declining to

look beyond the obvious meaning of the language) .

· Conduct Rules authorizes the disclosure of client confidences, and

that

attorneys

are

per

barred

from

disclosing

such

communications.unless their clients have accused them of a breach

trust.

incorrect.

above,

(Sprint's

Opening

BrieC at

18,

10-12).

The clear language of Section 205.3(d) (I),

explicitly

communications

contemplates

whenever

his

attorney's

her

compliance

use

This

as noted

such

"in

issue,"

regardless of whether it pertains to a claim or a defense.

Nothing

in the rule (or the Commission's comments in promulgating the rule)

limits disclosure to a response to an allegation of breach of trust

the

lawyer.

Sprint's

unduly

narrow

construction' of

Commission's Attorney-Conduct Rules would require the

the

Board to

unnecessarily and improperly read non-existent limitations into the

clear language of Section 205.3 (d) (1) without any textual basis for

doing so .1Y

The plain language of the Part 205 Rules is broader

See United Cigar Whelan Stores Corp. v. United States, 113

F.2d 340, 345 (9th Cir. 1940) ("we are not at liberty" to

"read into the regulation words not therein contained");

Spang v. United States, 791 F.2d 906, 912 (Fed. Cir. 1986)

(rejecting an interpretation ofa regulation because it

"requires reading into the regulation a requirement that

simply is not there") (internal quotation marks omitted);

Kappler v. Shalala, 840 F. Supp. 582, 586 (N. D. Ill. 1994)

("But it is not for [plaintiff] (or this Court) to read into

existence punctuation that does not exist, [or] to read

words into and out of the unambiguous text that [the]

Secretary has promulgated"); Griffin Indus. V. United

States, 27 Fed. Cl. 183, 1992 US Claims LEXIS 137 at *27

(Fed. Cl. 1992) (rejecting a regulatory interpretation

because it was "reading into the regulation something that

is not there").

than

what

Sprint

claims

and

limitations

that

Sprint

would

unambiguous

text.

Nothing

way

contains

any

have

the

Board

the

plain

language

read

of· the

into

its

Section

205.3(d) (1) can be construed reasonably as barring an attorney's

use of his or her Part 205 report offensively, as a "sword," or

alternatively limiting an attorney's use of such communications to

defensive measures, as a "shield."

Beyond this, Sprint's attempt to characterize SOX Section 806

retaliation

proceedings

unpersuasive.

purely

"offensive"

nature

A SOX whistleblower complaint is quintessentially a

defensive reaction to an employer's allegedly i!TIprope,r ·adv·erse

action,

not

purely

"offensive"

action

whistleblower.

eligible

file

whistleblower

action,

attorney must

the

attorney

SOX

Section

806

have

been

discharged,

demoted, suspended, threatened, harassed, or in any other manner

discriminated

agalnst

"in

employment."ll/

The whistleblower action is merely the employee's

the

and

terms

conditions

response to the employer's potentially wrongful action in impairing

the whistleblower's employment status.

Because the issuer has

already taken adverse employment action against the employee, and

the

employee

attempting

allegedly

restore

(rather than

preserve) the status quo, it is reasonable to view the employee as

acting in self-defense.

Put differently, if an issuer had to file

18 U.S.C. 1514A(a).

suit to terminate an employee,· and if the employee countered by

responding that the issuer was illegally retaliating against him,

no one would doubt that the employee was employing a "whistleblower

defense" to protect himself. 20 /

attorney

and

client

have

Indeed,

become

in both situations, the

adversaries,

adversarial relationship has developed,

and

"[o)nce

simple fairness demands

that the lawyer be able to present her claim or defense without

handicap. "n.!

Accordingly, Sprint's narrow interpretation of the scope of

the Commission's Attorney-Conduct Rules is neither self-evident nor

plain.

If anything, because it runs contrary to the broad remedial

purpose of the Part 205 regulations,g/ Sprint's misinterpretation

the Commission's

rules should not

be adopted.

is well

See, e.g., Coons v. Sec'y of U.S. Dep't of Treasury, 383

F.3d 879, 891 (9th Cir. 2004) (referring to "whistleblower

defense") .

1 Geoffrey C. Hazard & W. William Hodes, The Law of

Lawyering §9.23 at 9-100.

The Supreme Court has "repeatedly recognized that securities

laws combating fraud should be construed 'not technically

and restrictively, but flexibly to effectuate [their)

remedial purposes.'" Herman & MacLean v. Huddleston, 459

U.S. 375, 386-87 (1983) (quoting SEC v. Capital Gains Res.

Bureau, 375 U.S. 180,195 (1963)) i see also Lowe v. SEC, 472

U.S. 181, 225 (1985) (White, J., concurring) (noting "our

longstanding policy of construing securities regulation

enactments broadly and their exemptions narrowly in order to

effectuate their remedial purposes") i SEC v. Zandford, 535

U.S. 813, 819 (2002) i Pinter v. Dahl, 486 U.S. 622, 653

(1988) ("Congress had broad remedial goals in enacting

securities laws.") (internal quotation marks omitted) iSEC

v. Ralston-Plirina, 346 U.S. 119, 126 (1953) i Tello v. Dean

Witter Reynolds, 410 F.3d 1275, 1287 (11th Cir. 2005).

established that whistleblower protection provisions, such as SOX

Section 806 and Section 205.3 (d) (1), should be construed broadly in

their scope and applicability.ll/

2•

THE COMMISSION'S COMMENTS IN ADOPTING THE REGULATION SUPPORT

THE ATTORNEy-WHISTLEBLOWER'S USE OF PART

205 REpORTS.

Even if the Board were to look beyond the plain language of

Section 205.3(d) (1), the Commission's comments when it promulgated

Section 205.3(d) (1) firmly establish its intent that attorneys be

able to use their Part 205 reports whenever they are material and

probative of the attorney-whistleblower's allegations or defenses.

The Commission stated:

Paragraph (d) (1) makes clear that an attorney may use

any records tbe attorney may bave made in tbe course

of fulfilling bis or ber reporting obligations under

this part to defend bimself or berself against cbarges

of misconduct.

It is effectively equivalent to tbe

Haley v. Retsinas, 138 F.3d 1245, 1250 (8th Cir. 1998); see

also, e.g., Bechtel Constr.Co. v. Sec. of Labor,50 F.3d

926, 932 (11th Cir. 1995) ("it is appropriate to give a

broad construction to remedial statutes such as

nondiscrimination provisions in federal labor laws");

Blackburn v. Reich, 79 F.3d 1375, 1378 (4th Cir. 1996) ("The

overarching purpose of the" statute--the protection of

whistleblowers--militates against an interpretation that

would make anti-retaliation actions more difficult to

maintain."); Haley v. Fiechter, 953 F. Supp. 1085, 1092

(E.D. Mo. 1997) ("Courts which have been called upon to

interpret different federal whistleblower statutes have

uniformly held that such statutes should be broadly

construed."); Neal v. Honeywell, Inc., 826 F. Supp. 266, 270

(N.D. Ill. 1993); Clemes v. Del Norte County Unified Sch.

Dist., 843 F. Supp. 583, 595 (N.D. Cal. 1994)

("Whistleblower statutes have traditionally been broadly

construed") .

ABA's [Model Rule 1.6(b)(5)]~ and corresponding

....self-defense" exceptions to client -confidentiali ty

rules in every state. The Commission believes that it

is important to make clear in the rule that attorneys

can use any records they may have prepared in

complying with the rule to protect themselves.~/

ABA Model Rule 1.6 (b) (5) and the "corresponding 'self-defense'

exceptions

client

explicitly

referenced

confidentiality

attorneys

use

client

defenses

against

their

proceedings.

Section

the

rules

Commission's

confidences

clients,

every

comments

litigating

including

state"

entitle

claims

whistleblower

Indeed, the Commission emphasized the similarity of

205.3 (d) (1)

ABA

Model

Rule

1.6(b) (5).

That

rule

provides:

A lawyer may reveal information relating to the

representation of a client to the extent the lawyer

reasonably believes necessary:

(5)

to establish a claim or defense on behalf of the

lawyer in a ,controversy between the lawyer and the

client, to establish a defense to a criminal charge

or civil claim against the lawyer based upon

conduct in which the client was involved, or to

respond to allegations in any proceeding concerning

the lawyer's representation of the client[.]

Under rules patterned after ABA Model Rule 1.6 (b) (5) that have

The Commission's comments originally cited to then-Model

Rule 1.6(b) (3).

In August 2003, however, the ABA

reformatted its rules and re-numbered various provisions,

including then-Model Rule 1.6(b) (3), which was renumbered as

Model Rule 1.6(b) (5). The text and substance of the rule is

identical to its prior version. Thus, for purposes of this

brief, we refer to both versions of this rule as "Model Rule

1.6(b) (5)."

See 68 Fed. Reg. at 6310 (emphasis added).

been adopted by the overwhelming majority of states,

the "self

defense" exception - perhaps better termed the "claim or defense"

exception -

expressly applies to any claim by the attorney, not

just to defensive use of client confidences. 26 /

notably broad,

and numerous courts

Willy v. ARB,

423 F.3d 483,

496

This exception is

(beyond the Fifth Circuit

(5th Cir. 2005)

(looking to the

Model Rule in applying federal common law)), both before and after

the Commission adopted Section 2 05.3 (d) (1), have held that the rule

allows

attorneys

to use

client

confidences

discharge or whistleblower claims. 27 /

Indeed,

prove. wrongful-

the ABA has noted

Model Rule 1.6(b) (5), or its functional equivalent, is now

followed by at least 45 states.

See Ala. Rule 1.6(b) (2);

Alaska Rule 1.6(b) (2); Ariz. ER 1.6(d) (4); Ark. Rule

1.6(b) (5); Colo. Rule 1.6(c); Conn. Rule 1.6(d); Del. Rule

1.6(b) (5); Fla. Rule 4-1.6(c) (2); Ga. Rule 1.6(b) (1) (iii);

Haw. Rule 1.6(c) (3); Idaho Rule 1.6(b) (5); Ind. Rule

1.6(b) (5); Ia. ,Rule 32:1.6(b) (5); Kan. Rule 1.6(b)(3); Ky.

Rule 1.6(b) (2); La. Rule 1.6(b) (2); Md. Rule 1.6(b) (5);

Mass. Rule 1.6(b) (2); Minn. Rule . 1.6(b) (8); Miss.

Rule

1.6(b) (2); Mo. S. Ct. Rule 4-1.6(b) (2); Mont. Rule

1.6(b) (3); Neb. Rule 1.6(b) (3); Nev. Rule 156(3)(b); N.H.

Rule 1.6(b) (2); N.J. Rule 1.6(d) (2); N.M. Rule 16-106(D);

N. Car. Rule 1.6(b) (6); N. Dak. Rule 1.6(e); Ohio Rule

1.6(b) (5); Okla. Rule 1.6(b) (3); are. Rule 1.6(b)(4); Pa.

Rule 1.6(b) (4); R.I. Rule 1.6(b) (2); S. Car. Rule 1.6(b) (2);

S. Dak. Rule 1-.6 (b) (3); Tenn. Rule 1.6(b) (3) i Tex. Rule

1.6 (c) (5); Utah Rule 1.6 (b) (3); Vt. Rule 1.6 (c) (2); Va. Rule

1.6(b) (2); Wash. Rule 1.6(b) (2); w. Va. Rule 1.6(b) (2);

Wisc. Rule 1.6(c) (2); Wy. Rule 1.6(b) (2).

See Attachment A.

See Schaefer v. GE Co., 2008 U.S. Dist. LEXIS 5552, *23(D.

Conn. Jan.· 22, 2008) ("The plain language of Model Rule 1.6

is quite broad, allowing a lawyer to use the claim . . .

exception in a controversy between the lawyer and the

client" in an action for sex discrimination); Van Asdale v.

Int'l Game, Tech., 498 F.Supp.2d 1321, 1329 (D. Nev. 2007)

(allowing plaintiff to use confidential client information

in SOX whistleblower action, explaining that "The Model

that a wrongful-discharge action is a "claim" under ABA Model Rule

1.6 (b) (5) . 28/

Thus t under Model Rule 1.6 (b) (5) and state rules that

the Commission expressly referenced in promulgating its Attorney-

Rules permit a lawyer to reveal confidential information

relating to the representation in order to establish a claim

. on behalf of the lawyer in a controversy between the

lawyer and the client tt ); Burkhart v. Semitool t Inc. t 5 P.3d

1031 1042 (Mont. 2000) (discharged in-house counsel could

use client confidences as reasonably necessary to prove

wrongful-discharge claim); Alexander v. Tandem Staffing

Solutions t Inc. t 881 So.2d 607 t 610-12 (Fla. App. 2004)

(allowing employerts former general counsel to use client

confidences to support claim under Floridats Whistleblower

Act); Spratley v. State Farm Mut. Auto. Ins. CO. t 78

P.3d

603 t 608 (Utah 2003) (former in-house counsel could use

client confidences to prosecute wrongful-discharge claim);

see also Crews v. Buckman Labs Int'l, Inc.

78 S.W.3d 852

863-64 (Tenn. 2002) (adopting a new provision to its conduct

rules that follows Rule 1.6 and "permit[s] in-house counsel

to reveal the confidences and secrets of a client when the

lawyer reasonably believes that such information is

necessary to establish a claim or defense on behalf of the

lawyer in a controversy between the lawyer and the client") i

Oregon Formal Ethics Op. 136 (1994) (permitting the use of

client confidences by attorney in wrongful-termination case

after analyzing O~egon's rule that t like Rule 1.6(b) (5),

expressly applies to either a "claim or defense").

See

Attachment C. See also Hazard and Hodes, The Law of

Lawyering at 9-99 (Rule 1.6(b) (5) "permits a lawyer to

reveal client confidences when needed to 'establish a

claim t t which is a matter of offense rather than defense").

The ABAt s Standing Committee on Ethics and Professional

Responsibility explained that " [r]etaliatory discharge

actions provide relief to employees fired for reasons

contradicting public policYt" and that in-house attorneys

who are so discharged may rely on the exceptions

contemplated in this Model Rule to utilize confidential

client information to pursue "a retaliatory discharge claim

or similar claim" against their former employers. ABA

Formal Op. 01-424 at 3 -4 (Sept. 22 2001) (noting that an

attorney cannot divulge client confidences "except . . . as

permitted by Rule 1.6" and identifying now-Rule 1.6(b) (5) as

such an· exception).

See Attachment B.

Conduct

Rules,

there

can

question

that

the

Commission

authorized attorney-whistleblowers to use their Part 205 reports as

either a "shield" or a "sword" in proceedings and litigation where

their compliance with Part 205 is in -issue.

Although the Commission's

205.3(d) (1)

report

comment

in promulgating Section

notes that an attorney may use his or her Part 205

"to defend himself or herself,"

and also refeiences the

"'self-defense' exception" in the Model Rules and state bar rules,

this

should

not

construed

meaning

that

the

Commission

intended to limit Section 205.3 (d) (1) , s scope exclusively to purely

defensive uses by attorneys.

To the contrary, it bears repeating

that the Commission expressly stated in its comments that Section

205.3(d) (1)

"effectively

equivalent"

Model

Rule

1.6(b) (5)--a rule that authorizes the use of client confidences to

establish a claim or' defense in a controversy between the attorney

and client.

Sprint's

confidences

undermine

warning

the

SOX

that

allowing

whistleblower

attorney-client

attorneys

proceedings

privilege

will

not

use

client

seriously

well-founded.

Section 205.3(d) (l)'s permissible use of client confidences is no

broader than that under the federal common law and the law of at

least 45 states.

Thus, its application to SOX whistleblower claims

represents no erosion of client confidentiality.29/

?J.I

Sprint may also argue that interpreting Section 205.3(d) (1)

as permitting the offensive use of client confidences in

While we believe it to be unambiguous, Should the Board find

any ambiguity in the plain language of Section 205.3(d) (1), the

Commission's comments on and interpretation of these regulations

are

unambiguous

and deserve

full

consideration.

"agency's

interpretation [of its own regulations] must be given controlling

weight unless it is plainly erroneous or inconsistent with the

regulation. fI'J2./

Thus,

when an agency,

the SEC,

that

Section 806 proceedings is inconsistent with the

Commission's decision not to promulgate in its Part 205

rules a "noisy withdrawal provision, requiring lawyers to

notify the Commission of their withdrawal from the

representation of a client that did not remedy reported

violatlons.

See Release No. 33-8150 (Feb.

6, 2003), 68

Fed. Reg. 6296, 6297; Release 33-8150 (Nov. 21, 2002), 67

Fed. Reg. 71669. This argument would be both inaccurate and

beside the point.

First, the Commission's decision not to

include a "noisy withdrawal provision in its Rules at that

time in no way can be construed to mean that the Commission

sought to bar any disclosure of client confidences outside

of an issuer. ~o the contrary, Section 205.3(d) (2)

explicitly permits attorneys to disclose client confidences

outside the issuer in certain circumstances, including:

(i)

to prevent the issuer from committing a material violation

that is likely to cause substantial injury to the issuer or

investors; (ii) to prevent the issuer from committing

perjury, suborning perjury, or committing any act proscribed

in 18 U.S.C. 1001 that is likely to perpetrate a fraud upon

the Commission; or (iii) to rectify the consequences of ~

material violation by the issuer that caused, or may cause,

substantial injury to the issuer or investors. 17 C.F.~.

205.3(d) (2). Moreover, whether the Commission expressly

permitted or required attorneys to disclose client

confidences ~n the first instance has no bearing on whether

attorneys who are retaliated against for making Part 205

reports may use those reports in subsequent whistleblower

proceedings where their compliance with Part 205 is in

issue. That is a different situation, which Section

205.3(d) (1) squarely addresses.

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)

("we must defer to the [Commission's] interpretation unless

charged with implementing a statute, interprets this statute and/or

its own rules, its interpretation is entitled to deference.

This

deference should extend to the Commission's position explaining

Section 205.3(d) (1) as amicus in this matter. l l/

EVEN

IF FEDERAL COMMON LAw ApPLIED,

SPRINT'S

ARGUMENT

UNAVAILING.

While the Commission submits that federal common law permits

the use of client confidences in federal whistleblower proceedings

brought by attorneys under SOX Section 806, the Board need not even

an alternative reading is compelled by the regulation's

plain language or by other indications of the [Commlssion's]

intent at the time of the regulation's promulgation"

(internal quotation marks omitted) i see also National Ass'n

of Home Builders v. Defenders of wildlife, 551 U.S. 644,

672-78 (2007); Long Island Care at Home Ltd. v. Coke, 551

U.S. 158, 170-72 (2007) i Martin v. OSHA, 499 U.S. 144, 151

(1991) ("Because applying an agency's regulation to complex

or changing circumstances calls upon the agency's unique

expertise and Rolicymaking prerogatives, we presume that the

power authoritatively to interpret its own regulations is a

component of the agency's delegated lawmaking powers.").

l!!

As the Second Circuit wrote in adopting the Commission'~

interpretations of its regulations in Roth v. Perseus, LLC,

522 F.3d 242, 247 (2d Cir. 2008):

we defer to the SEC's interpretation of the

Rule, including one articulated in its amicus

brief, so long as the interpretation is not

plainly erroneous or inconsistent with the

law.

See also Auer v. Robbins, 519 U.S. 452, 461-6f (1997)

(agency interpretation of its own regulation is controlling"

even if presented in amicus brief); Chevron, U.S.A., Inc. v.

NRDC, 467 U.S. 837 (1984); Press v. Quick & Reilly, Inc.,

218 F.3d 121, 128 (2d Cir. 2000) ("We are bound by the SEC's

interpretations of its regulations in its amicus brief,

unless they are plainly erroneous or inconsistent with the

regulation[s]") .

reach this issue.

As set forth above, the Commission's Part 205

rules

express

contain

provision of

federal

law explicitly

authorizing the use of Part 205 reports and the responses thereto

in SOX whistleblower proceedings.

Nonetheless,

because

the

federal

underscores

common law may be

the

soundness

That is,

promulgation of Section 205.3 (d) (1) .

the

relevant

here

Commission's

it was ,eminently

reasonable for the Commission to promulgate Section 205.3(d) (1)

because it allows the use of client confidences in a manner that is

consistent with the federal common law.

In arguing incorrectly

that the federal common law bars such use, Sprint relies heavily on

the Board's Willy decision,ll/ and argues that the Fifth Circuit's

reversal

that

Circuit .n..!

decision

that

case,

should

brought

confined

under

the

Fifth

whistleblower

provisions of federai environmental laws rather than SOX, the Board

- relying upon Supreme,Court Standard 503(d) (2) ,34/ which limits an

Willyv. Coastal Corp., ARB Case No. 98-060, 2004 DOL Ad.

Rev. Bd. 19 (ARB 2004).

Willy v. ARB, 423 F.3d 483, 496 (5th Cir. 2005) (reversing

ARB decision in Willy v. Costal Corp.).

Supreme Court Standard 503 is the proposed Federal Rule of

Evidence 503. It was proposed by the Supreme Court in 1972,

see Rules of Evidence for the United States Courts and

Magistrates, 56 F.R.D. 183, 235-36 (1972), but never adopted

by Congress. Nonetheless, it is often cited as a

restatement of the common law of attorney-client privilege

applied in the federal courts at that time.

See e.g.,

United States v. Moscony, 927 F.2d 742, 751 (3d Cir. 1991)

attorney's unconsented use of client confidences

to situations

where they are "relevant to an issue of breach of duty by the

lawyer to his client or the client to his lawyer" - held that the

federal common law does not allow attorneys to make "offensive use"

reports

containing

client

confidences

whistleblower

proceedings brought by the attorney against his former

client.~1

This decision was reversed by the Fifth Circuit, which-held that

federal common law allows the use of client confidences whenever

they are relevant to a

claim or defense in litigation between

attorney and client.~1

The Fifth Circuit's reading of federal common law in Willy v.

ARB is correct for two reasons.

First, as the Fifth Circuit held,

Standard 503 explicitly authorizes a whistleblowing attorney to use

client confidences where such communications are relevant to a

claim of "breach of 'duty

by the lawyer to his client or by

the client to his lawy~r."371 Certainly Section 806 can be read to

impose a duty on client-issuers not to take adverse action against

their lawyer-employees for reporting potential material violations

of federal law as required by Part 205.

Even under Disciplinary

Rule 4-101-C of New York's Code of Professional Responsibility,

which Sprint suggests is the applicable state law in this case, an

Willy v. Coastal Corp., 2004 DOL Ad. Rev. Bd. 19.

Willy v. ARB, 423 F.3d 483, 496 (5th Cir. 2005).

423 F.3d at 496.

attorney is permitted to use client confidences "to defend himself

. . . against an accusation of wrongful conduct."

It is typical in

whistleblower cases for the employer to allege that any supposed

retaliation was instead a response to the employee's misconduct;

indeed, Sprint makes such claims here. 38 /

Second,

even assuming Standard 503 should be interpreted

narrowly as Sprint urges, that standard merely reflects a static

picture of the federal

(i.e.,

common law at the time of its proposal

1972) and no longer reflects the current state of federal

common law. l l/

Federal common law on privilege is meant to reflect

"well-established [state law]

privilege. 40 /

exceptions" to the attorney-client

Standard 503(d) (2)'s limitation of the use of client

confidences to "breach of duty" claims drew from the old Code of

Professional

Responsibility.

Since

1972,

however,

that

Code

provision has been replaced by ABA Model Rule 1.6(b) (5), which (as

discussed above) broadly allows the use of client confidences if

relevant to the attorney's "claim or defense" against the client.

This Model Rule has been adopted by nearly all of the individual

states, and thus now is the "well established exception" in state

See Sprint's Motion to Dismiss or, Alternatively, for

Summary Decision, at pp. 7-12.

See, e.g., Moscony, 927 F.2d at 751.

See Advisory Committee Notes to Standard 503, 56 F.R.D. at

239-40 (noting that Standard 503 was drafted with reference

to established state rules) .

law from which the federal common law must derive. 411 Cf.

States v. Valentine,

reference,

and

401 F.3d 609, 615

find persuasive,

state

(5th Cir.

2005)

United

("we may

law in crafting

federal

common law") .

SOX

WHISTLEBLOWER

PROCEEDINGS,

CLIENT

CONFIDENCES

SHOULD

REVIEWED IN CAMERA AND PRODUCED SUBJECT TO ApPROPRIATE PROTECTIVE

ORDERS.

sox

whistleblowers,

whistleblower

proceedings

involving

. attorney

ALJs have the authority to minimize the public

disclosure of client confidences and ensure that any use of client

confidences is handled in an appropriate ·and circumspect manner.

Indeed, Section 18.46 of Subpart A of the Rules of Practice and

ProceduTe for Administrative Hearings Before the Office of ALJs,

Siedle v. Putnam

, Inv., 147 F.3d 7 (1st Cir. 1998), the

primary case upon which Sprint relies other than the Board's

decision in Willy, is thus distinguishable because it

applies Massachusetts state law (as opposed to federal

common law), which was based upon Disciplinary Rule 4

101(C) ~ Also, as the Fifth Circuit noted in Willyv. ARB,

to the extent that the Siedle court read Disciplinary Rule

4-101(C) as prohibiting the "offensive" use of client

confidences, it misinterpreted the caselaw applying that

provision. 423 F.3d at 496. The Fifth Circuit also

observed that Siedle "neither explicitly nor implicitly held

that the attorney could never use confidential information

against his employer.

It merely reversed the district

court's order that the seal should be lifted" to make the

privileged materials available to the press.

Id. at 497-98.

Furthermore, the Siedle court relied on the ABA Disciplinary

Rules adopted in 1970 as part of the ABA's Code of

Professional Responsibility. However, in 1983, the ABA

introduced the Model Rules, of which Model Rule 1.6(b) (5) is

a part. Since then, nearly every state has adopted the

Model Rules or most of them, although some continue to rely

on limited portions of the Code of Professional

Responsibility and its Disciplinary Rules.

29 C.F.R.

18.46

("In camera and protective orders"),

contemplates that ALJs should, when appropriate,

explicitly

"limit discovery

or [the] introduction of evidence or issue such protective or other

orders . . . consistent with the objective of protecting privileged

communications."

ALJs

may,

for

instance,

elect

determine

whether

the

complainant has successfully alleged a claim upon which relief can

be granted before even permitting an .attorney to introduce into

evidence client confidences in support of his or her claim. Q1

Even

after such a determination is made, and the attorney-whistleblower

is permitted to use his or her Part

thereto)

205 report

(and response

in support of his or her retaliation claim,

authorized

under

Section

18.46

take

appropriate

ALJs are

steps

safeguard the confidentiality of client confidences by, among other

things,

reviewing

relevant

documents

camera

and/or

issuing

protective orders, including orders to seal certain documents and

to keep such documents confidential.

This would be entirely consistent with courts' practices in

managing cases involving attorney-client disputes.

In Kachmar v.

Sunguard Data Systems, Inc., 109 F.3d 173, 181 (3d Cir. 1997), the

Third Circuit explained that courts seeking to limit the disclosure

client

confidences

in disputes between attorneys

and their

Under 29 C.F.R. 18.1(a), a claim may be dismissed if the

complainant fails to allege· a legal claim· upon which relief

can be granted, such as if the complainant is not a covered

employee under SOX.

See Fed. R. Civ. P. 12(b) (6).

former

clients

may

protective orders,

issue,

among

other

orders,

"sealing

and

[orders] limit [ing] admissibility of evidence,

orders restricting the use of testimony in successive proceedings,

and, where appropriate, in camera proceedings" to limit the release

and disclosure of sensitive client information. 43 /

implementing

whistleblower

claim

such

measures,

least

until

attorney-whistleblower

SOX

deemed

sufficiently meritorious as to warrant a trial, the disclosure of

client confidences can effectively be limited to the parties and

the ALJ. 44 / Using a protective order in a whistleblower case also

does not present the issue frequently raised when an attorneyclient

document

produced

in civil

discovery pursuant

protective order--i.e., that an adversary is obtaining access to

privileged information it would not otherwise be entitled to see-

because in whistleblower cases the attorney already has access to

his or her Part 205 report.

Thus, if the ALJ's examination of the

109 F.3d at 182; see also Schaefer, 2008 U.S. Dist. LEXIS

5552 at *49 ("A protective order may provide ample ways of

protecting privileged information and guarding GE's

confidences during this ·lawsuit."); Heckman v. Zurich

Holding Co. of Am., 242 F.R.D. 606, 611 (D. Kan. 2007)

("Courts which permit retaliatory discharge claims by incounsel have recognized the importance of equitable

measures, including protective orders") .

See Comment 14 to ABA Model Rule 1.6 ("If the disclosure

will be made in connection with.a judicial proceeding the

disclosure should be made ina manner that limits access to

the information to the tribunal or other persons having a

need to know it and appropriate protective orders or other

arrangements should be sought by the lawyer to the fullest

extent practicable") .

purported Part 205 report and any response reveals no facts that a

reasonable attorney could believe demonstrated a material violation

of the federal securities law,

or no evidence that the alleged

retaliation was a response to the Part 205 report (e.g.,

if those

with knowledge of the Part 205 report were not involved in the

adverse action),

or if there was indisputable evidence that the

adverse action was based on unrelated events, the claim, should be

dismissed pursuant to 29 C.F.R.

18.41 without disclosure of the

client confidences beyond the parties and the ALJ.~I

CONCLUSION

The

Commission

has

attorney-whistleblowers

who

strong

may

interest

have

suffered

ensuring

that

retaliation

for

having reported material violations as required by the Commission's

Attorney-Conduct Rules may use their Part 205 reports,

and the

responses thereto, to establish their retaliation claims, even if

those

documents

contain

client

confidences.

Accordingly,

respectfully urge the Board to hold that when an attorney brings a

whistleblower action under SOX Section 806, he or she may introduce

his or her Part 205 reports, and any responses thereto, when such

Documents used by parties moving for, or opposing, summary

judgment Umay be kept under seal if countervailing factors

in the common law framework or 'higher values' in the First

Amendment framework so demand." Lugosch v. Pyramid Co., 435

F.3d 110, 121, 125 (2d Cir. 2006) (internal quotation marks

omitted). Among other things, the Second Circuit noted that

the protection of attorney-client privilege Umight well be

such a compelling reason" in some situations.

Id. at 125.

reports are probative and material to his or her claim of illegal

retaliation or to refute a defense thereto.

Respectfully submitted,

MatlM-J,&

dVI~~CKER

General Counsel

MARK D.

CARN

Deputy General Counsel

RICHARD M. HUMES

Associate General Counsel

THOMAS J. KARR

Assistant General Counsel

WOO S. LEE

Senior Counsel

UNITED STATES SECURITIES AND

EXCHANGE COMMISSION

100 F Street, NE

Washington, DC 20549-9612

(202) 551-5163 (Karr)

(202) 772-9263 (fax)

Attorneys for the United States

Securities and Exchange Commission,

Amicus.

August 3, 2009

Certificate of Service

I certify that copies of this Brief of the Securities and

Exchange Commission, Amicus Curiae have been served on the

following individuals by deposit in the United States Mail this

3rd day of August, 2009:

Jack R.T. Jordan

P.O. BOX 14247

Parkville MO 64152

Eugene Scalia

Gibson Dunn & Crutcher LLP

1050 Connecticut Ave., NW

Washington, DC 20036

C. William Baxley

King & Spalding

1180 Peach Street

Atlanta, GA 30309-3521

Ellen Edmond

US Department of Labor

Suite N-2.716

Washington, D.C. 20210

Woo S. Lee

Senior Counsel

Office of the General Counsel

(202) 551-7922

Attachment A

Page 1

LEXSTAT ALA. RULES OF PROFL CONDUCT 1.6

MICHIE'S ALABAMA RULES

a member of the LexisNexis Group.

*** State court rules are current with amendments received through May 1, 2009 ***

*** Local federal district and bankruptcy court rules are current with amendments received through May 1,2009 ***

ALABAMA RULES OF PROFESSIONAL CONDUCT

CLIENT-LAWYER RELATIONSHIP

Ala. Rules o/Prof Conduct Rule 1.6 (2009)

Review Court Orders which may amend this Rule.

Rule 1.6. Confidentiality of information.

(a) A lawyer shall not reveal information relating to representation ofa client unless the client consents after

consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as

stated in paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) To prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent

death or substantial bodily harm; or

(2) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to

establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

NOTES:

Comment

A lawyer, as an officer of the court and as a part of the judicial system, is charged with upholding the law. One of

the lawyer's functions is to advise clients so that they avoid any violation of the law in the proper exercise of their

rights.

The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only

facilitates the full development of facts essential to proper representation of the client but also encourages people to

seek early legal assistance.

Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the

maze of laws and regulations, deemed to be legal and correct. The common law recognizes that the client's confidences

must be protected from disclosure. Based upon experience, lawyers know that almost all clients follow the advice given,

and the law is upheld.

Alaska Rules of Professional Conduct

Page 16 of 116

services for the client or perform them in a way contrary to the client's interest. For example, a

lawyer should not enter into an agreement whereby services are to be provided only up to a

stated amount when it is foreseeable that more extensive services probably will be required,

unless the situation is adequately explained to the client. Otherwise, the client might have to .

bargain for further assistance in the midst of a proceeding or transaction. However, it is proper

to define the extent of services in light of the client's ability to pay. A lawyer should not exploit a

fee arrangement based primarily on hourly charges by using wasteful procedures.

Prohibited Contingent Fees

[6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic relations

matter when payment is contingent upon the securing of a divorce or upon the amount of

alimony or support or property settlement to be obtained. This provision does not preclude a

contract for a contingent fee for legal representation in connection with the recovery of post

judgment balances due under support, alimony, or other financial orders because such

contracts do not implicate the same policy concerns.

Division of Fee

[7] A division of fee is a single billing to a client covering the fee of two or more lawyers who

are not in the same firm. A division of fee facilitates association of more than one lawyer in a

matter in which neither alone could serve the client as well, and most often is used when the

fee is contingent and the division is between a referring lawyer and a trial specialist.

Paragraph (e) permits the lawyers to divide a fee either on the basis of he proportion of .

services they render or if each lawyer aSSl,Jmes responsibility for the representation as a

whole. In addition, the client must agree to the arrangement, including the share that each

lawyer is to receive, and the agreement must be confirmed in Writing. Contingent fee

agreements must be in a writing signed by the client and must otherwise comply with

paragraph (c) of this Rule. Jornt responsibility for the representation entails financial and

ethical responsibility for the representation as if the lawyers were associated in a partnership.

A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes

is competent to handle the matter. See Rule 1.1.

[8] Paragraph (e) does not prohibit or regulate division of fees to be received in the future for

work done when lawyers were preViously associated in a law firm.

Disputes over Fees

[9] If a procedure has been established for resolution of fee disputes, such as an arbitration or

mediation procedure established by the bar, the lawyer must comply with the procedure when

it is mandatory, and, even when it is voluntary, the lawyer should conscientiously consider

submitting to it. Law may prescribe a procedure for determining a lawyer's fee, for example, in

representation of an executor or administrator, a class or a person entitled to a reasonable fee

as part of the measure of damages. The lawyer entitled to such a fee and a lawyer

representing another party concerned with the fee should comply with the prescribed

procedure.

Return to top

Rule 1.6. Confidentiality of Information.

(a) A lawyer shall not reveal a client's confidence or secret unless the client gives informed

http://www.state.ak.us/courts/prof.htm

7/27/2009

Alaska Rules of Professional Conduct

Page 17 of 116

consent, except for disclosures that are impliedly authorized in order to carry out the

representation and disclosures permitted by paragraph (b) below or Rule 3.3. For purposes of

this rule, "confidence" means information protected by the attorney-client privilege under

applicable law, and "secret" means other information gained in the professional relationship if

the client has requested it be held confidential or if it is reasonably foreseeable that disclosure

of the information would be embarrassing or detrimental to the client. In determining whether

information relating to representation of a client is protected from disclosure under this rule, the

lawyer shall resolve any uncertainty about whether such information can be revealed against

revealing the information..

(b) A lawyer may reveal a client's confidence or secret to the extent the lawyer reasonably

believes· necessary:

(1) to prevent reasonably certain:

(A) death;

(8) substantial bodily harm; or

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in

substantial injUry to the financial interests or property of another and in furtherance of which

the client has used or is using the lawyer's services;

(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of

another that is reasonably certain to result or has resulted from the client's commission of a

crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

•

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer

and the client, to establish a defense toa criminal charge or civil claim against the lawyer

based upon conduct in which the client was involved, or to respond to allegations in any

proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.

inadvertent or unauthorized disclosure by the lawyer, by other persons who are participating in

the representation of the client, or by any other persons who are subject to the lawyer's

supervision. See Rules 1.1, 5.1, and 5.3. When transmitting a communication that includes a

client's confidence or secret, the lawyer must take reasonable precautions to prevent this

information from coming into the hands of unintended recipients.

(SCQ 1123 effective JUly 15, 1993; amended by SCQ 1332 effective January 15, 1999; and

rescinded and repromulgated by SCQ 1680 effective April 15, 2009)

ALASKA COMMENT

The Court decided to continue Alaska's amendment to this rule to tie the lawyer's

confidentiality obligation to a "confidence" or "secret" of the client. The Committee concluded

"'1""'1" 1\1\1\

"'1.J..) J. :Io.L...i,UU.l

•• J. :Io..llL,VJ1'"

.J.'-\.U""~

U.J. .J. 1. VJ.""'.3.>JVJJUJ "",,V1.1.UU""'''

tie"'"

VI .,.

Member Resources

Arizona Ethics Rules

ER 1.6.

Confidentiality of Information

(a) 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 the disclosure is permitted or required by paragraphs (b), (c) or (d), or ER 3.3

(a)(3).

(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a

criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

(c) A lawyer may reveal the Intention of the lawyer's client to commit a crime and the Information necessary to prevent the crime.

(d) A lawyer may reveal such information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial

interests or property of another and 'in furtherance of which the client has used or is using the lawyer's services;

(2) to mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has

resulted from the client's commission of a crime or fraud In furtherance of which the client has used the lawyer's services;

(3) to secure legal advice about the lawyer's compliance with these Rules;

(4) to establish a claim or defense on behalf of the lawyer In a controversy between the lawyer and the client, to establish a defense

to a criminal charge or civli claim against the lawyer based upon conduct in which the client was Involved, or to respond to allegations

In any proceeding concerning the lawyer's representation of the client; or

(5) to comply with other law or a final order of a court or tribunal of competent jurisdiction directing the lawyer to disclose such

Information.

Comment

(1) This Rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer's representation of

http://www.myazbar.org/Ethics/ruleview.cfm?id=26

7/27/2009

Page 1

LEXSTAT ARK.PROFESSIONAL CONDUCT RULE 1.6

Arkansas Code of 1987 Annotated Official Edition Court Rules 2009

1987-2009 by the State of Arkansas

*** THIS DOCUMENT IS CURRENT WITH OPINIONS THROUGH MARCH 19,2009 ***

BY THE ARKANSAS SUPREME COURT AND ARKANSAS COURT OF APPEALS

*** Annotations current through February 26, 2009 ***

ARKANSAS RULES OF PROFESSIONAL CONDUCT

CLIENT-LAWYER RELATIONSHIP

Ark. R. Prof. Conduct 1.6 (2009)

Review Court Orders which may amend this Rule.

Rule 1.6. Confidentiality of information

(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent,

the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph

(b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(I) to prevent the commission of a criminal act;

(2) to prevent the client from committing a fraud that is reasonably certain to result in injury to the financial

interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify injury to the financial interest or property of another that is reasonably certain to

result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the

lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5)to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to

establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client or,

(6) to comply with other law or a court order.

withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation or the like.

HISTORY: (Amended March 14, 1988)

NOTES: COMMENT

Page 1

LEXSTATCOLO.RPC 1.6

COLORADO COURT RULES

a division of Reed Elsevier Inc.

and Reed Elsevier Properties Inc.

*** THIS DOCUMENT REFLECTS CHANGES RECEIVED THROUGH JULY 13,2009 ***

COLORADO RULES OF PROFESSIONAL CONDUCT

APPENDIX TO CHAPTERS 18 TO 20

CLIENT-LAWYER RELATIONSHIP

Colo. RPCI.6 (2009)

Rule 1.6. Confidentiality ofInfonnation.

(a) A lawyer shall not reveal infonnation relating to the representation of a client unless the client gives infonned

consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is pennitted by

paragraph (b).

(b) A lawyer may reveal infonnation relating to the representation of a client to the extent the lawyer reasonably

believes necessary:

(1) to prevent reasonably certain death or substantial bodily hann;

(2) to reveal the client's intention to commit a crime and the infonnation necessary to prevent the crime;

(3) to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the

financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(4) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is

reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the

client has used the lawyer's services;

(5) to secure legal advice about the lawyer's compliance with these Rules, other law or a court order;

(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to

establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(7) to comply with other law or a court order.

HISTORY: Source: Entire Appendix repealed and readopted April 12, 2007, effective January 1,2008; Comment 16,

17, and 18 added and effective November 6,2008.

NOTES:

Page I

e"LexisNexis'

LEXSTAT CONN. RULES OF PROFL CONDUCT 1.6

CONNECTICUT RULES OF COURT

* THIS DOCUMENT IS CURRENT THROUGH CHANGES RECEIVED AS OF 1/1/2008 *

RULES OF PROFESSIONAL CONDUCT

CLIENT-LAWYER RELATIONSHIPS

Conn. Rules ofProfI Conduct 1.6 (2008)

Rule 1.6. Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent,

the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by

subsection (b), (c), or (d).

(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the

client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial

bodily harm.

(1) Prevent the client from cOrm'ilitting a criminal or fraudulent act that the lawyer believes is likely to result in

. substantial injury to the financial interest or property of another;

(2) Prevent, mitigate or rectify the c6nsequence of a client's criminal or fraudulent act in the commission of which

the lawyer's services had been used;

(3) Secure legal advice about the lawyer's compliance with these rules;

(4) Comply with other law or a court order.

(d) A lawyer may reveal such information to establish a claim or defense on behalf of the lawyer in a controversy

between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based

upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's

representation of the client.

De J~ Wo.v'e?- R" )-es cd' 'fvotess lCYl",-1 CO'1.cLv c-t

Rule 1.6. Confidentiality of information

(a) A lawyer shall not reveal infonnation relating to the representation of a client unless the client gives infonned con

sent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is pennitted by

paragraph (b).

(b) A lawyer may reveal information relating to the representation of a Client to the extent the lawyer reasonably

believes necessary:

(1) to prevent reasonably certain death or substantial bodily hann;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to

the financial itlterests or property of another and in furtherance of which the client has used or is using the lawyer's ser

vices;

(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasona

bly certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client

has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to es

tablish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was in

volved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.

COMMENT

[I J Thi.s Rule governs the disclosure by a lawyer of infonnation relating to the representation of a client during the

•

,.....

,..

.......

. . . . . . ,..,.

...

',.

.,..

......

,,"

Page 1

LEXSTAT FLA. R. REGULATING THE BAR 4- 1.6

LexisNexis Florida Rules of Court Annotated

a member of the LexisNexis Group.

*** Rules current through changes received by May 1,2009 ***

*** Annotations current through May 1,2009 ***

Rules Regulating The Florida Bar

Chapter 4. Rules of Professional Conduct

4-1. CLIENT-LAWYER RELATIONSHIP

Fla. Bar Reg. R. 4-1.6 (2009)

Review Court Orders which may amend this Rule.

Rule 4-1.6. Confidentiality of Information

(a) Consent Required to Reveal Information. --A lawyer shall not reveal information relating to representation of a

client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.

(b) When Lawyer Must Reveal Information. --A lawyer shall reveal such information to the extent the lawyer

reasonably believes necessary:

(1) to prevent a client from committing a crime; or

(2) to prevent a death or substantial bodily harm to another.

reasonably believes necessary:

(l) to serve the client's interest unless it is information the client specifically requires not to be disclosed;

(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;

(3) to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the

client was involved;

(4) to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(5) to comply with the Rules of Professional Conduct.

(d) Exhaustion ofAppellate Remedies. --When required by a tribunal to reveal such information, a laWyer may

first exhaust all appellate remedies.

(e) Limitation on Amount ofDisclosure. --When disclosure is mandated or permitted, the lawyer shall disclose no

Page 2

Fla. Bar Reg. R. 4-1.6

more information than is required to meet the requirements or accomplish the purposes of this rule.

HISTORY: Amended eff. March 23, 2006 (933 So.2d 417)

NOTES:

COMMENT

The lawyer is part of a judicial system charged with upholding the law. One of the lawyer's functions is to advise

clients so that they avoid any violation of the law in the proper exercise of their rights.

This rule governs the disclosure by a lawyer of information relating to the representation of a client during the

lawyer's representation ofthe client. See rule 4-1.18 for the lawyer's duties with respect to information provided to the

lawyer by a prospective client, rule 4-1.9(b) for the lawyer's duty not to reveal information relating to the lawyer's prior

representation of a former client, and rules 4-1.8(b) and 4-1.9(b) for the lawyer's duties with respectto'the use of such

information to the disadvantage of clients and former clients.

A fundamental principle in the client-lawyer relationship is that, in the absence ofthe client's informed consent, the

lawyer must not reveal information relating to the representation. See terminology for the definition of informed

consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby

encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or

legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary,

to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to

determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon

experience, lawyers know that almost all clients follow the advice given, and the law is upheld.

The principle of confidentiality is given effect in 2 related bodies oflaw, the attorney-client privilege (which includes

the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The

attorney-client privilege applies injudicial and other proceedings in which a lawyer may be called as a witness or

otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in

situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality

rule applies not merely to matters communicated in confidence by the client but also to all information relating to the

representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the

Rules of Professional Conduct or by'law. However, none of the foregoing limits the requirement of disclosure in

subdivision (b). This disclosure is required to prevent a lawyer from becoming an unwitting accomplice in the

fraudulent acts of a client. See also Scope.

The requirement of maintaining confidentiality of information relating to representation applies to government

lawyers who may disagree with the policy goals that their representation is designed to advance.

Authorized disclosure

A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the

representation, except to the extent that the client's instructions or special circumstances limit that authority. In

litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed or in

negotiation by making a disclosure that facilitates a satisfactory conclusion.

Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the

firm, unless the client has instructed that particular information be confined to specified lawyers.

Disclosure adverse to client

The confidentiality rule is subject to limited exceptions. In becoming privy to information about a client, a lawyer

may foresee that the client intends serious harm to another person. However, to the extent a lawyer is required or

permitted to disclose a client's purposes, the client will be inhibited from revealing facts that would enable the lawyer to

counsel against a wrongful course of action. While the public may be protected if full and open communication by the

client is encouraged, several situations must be distinguished.

First, the lawyer may not counselor assist a client in conduct that is criminal or fraudulent. See rule 4-1.2(d).

Similarly, a lawyer has a duty under nile 4-3.3(a)(4) not to use false evidence. This duty is essentially a special instance

of the duty prescribed in rule 4-1.2(d) to avoid assisting a client in criminal or fraudulent conduct.

Second, the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent.

State Bar of Georgia - RUI,-E 1.6 CONFIDENTIALITY OF INFORMATION

Page 1 of4

State Bar

m of Georgia

. Lawyers Serving the Public and the Justice System

Home » Handbook » Part IV (After January 1, 2001) - Georgia Rules of Professional

Conduct » RULE 1.6 CONFIDENTIALITY OF INFORMATION

RULE 1.6 CONFIDENTIALITY OF INFORMATION

-----------_._._---------

(a) A lawyer shall maintain in confidence all information gained in the professional

relationship with a client, including information which the client has requested to be held

inviolate or the disclosure of which would be embarrassing or would likely be detrimental to

the client, unless the client consents after consultation, except for disclosures that are

impliedly authorized in order to carry out the representation, or are required by these rules

or other law, or by order of the Court..

(b) (1) A lawyer may reveal information covered by paragraph (a) which the lawyer

reasonably believes necessary:

(i) to avoid or prevent harm or substantial financial loss to another as a result

of client criminal conduct or third party criminal conduct clearly in violation of

the law;

(ii) to prevent serious injury or death not otherwise covered by subparagraph

(i) above;

(iii) to establish a claini or defense on behalf of the lawyer in a controversy

between the lawyer and the client, to establish a defense to a criminal charge

or civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to 4lllegations in any proceeding concerning the

lawyer's representation of the client.

(2) In a situation described in Subsection (1); if the client has acted at the time the

lawyer learns of the threat of harm or loss to a Victim, use or disclosure is

permissible only if the harm or loss has not yet occurred.

(3) Before using or disclosing information pursuant to Subsection (1), if feasible, the

lawyer must make a good faith effort to persuade the client either not to act or, jf

the client has already acted, to warn the victim.

the duty of confidentiality does not apply under paragraph (b) without being subjected to

disciplinary proceedings.

(d) The lawyer shall reveal information under paragraph (b) as the applicable law requires.

(e) The duty of confidentiality shall continue after the client-lawyer relationship has

terminated.

The maximum penalty for a violation of this Rule is disbarment.

Comment

[1] The lawyer is part of a judicial system charged with upholding the law. One of the

lawyer's functions is to advise clients so that they avoid any violation of the law in the

proper exercise of their rights.

http://www.gabar.orglhandbook/part IV after 1anuarv 1 2001 - Q:eorQJa rule1=: of nTOfe~~ion::ll

7/?7/?OOQ

Page I

.·LexisNexis·

I of 100 DOCUMENTS

Michie's Hawai'i Statutes Annotated

a member ofthe LexisNexis Group.

*** RULES CURRENT THROUGH MAY 15,2009 ***

*** ANNOTATIONS CURRENT THROUGH MAY 1,2009 ***

Exhibit A Hawai'i Rules of Professional Conduct

Adopted December 6, 1993; effective January I, 1994.

HAWAI'I RULES OF PROFESSIONAL CONDUCT

CLIENT-LAWYER RELATIONSHIP

Haw. Rules ofProfl Conduct Rule 1.6 (2009)

Review Court Orders which may amend this Rule.

Rule 1.6. Confidentiality of Information.

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after

consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as

stated in paragraphs (b) and (c).

(b) A lawyer shall reveal information which clearly establishes a criminal or fraudulent act ofthe client in the

furtherance of which the lawyer's services had been used, to the extent reasonably necessary to rectify the consequences

of such act, where the act has resulted in substantial injury to the financial interests or property of another.

believes necessary:

(I) to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely

to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another;

(2) to rectify the consequences of a client's act which the lawyer reasonably believes to have been criminal or

fraudulent and in the furtherance of which the lawyer's services had been used;

(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to

establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in

which the client was involved, 01' to respond to allegations in any proceeding concerning the lawyer's representation of

the client; or

(4) to prevent a public official or public agency from committing a criminal or illegal act that a government lawyer

reasonably believes is likely to result in harm to the public good;

(5) to rectify the consequences of a public official's or a public agency's act which the government lawyer

Page 2

Haw. Rules of Prof I Conduct Rule 1.6

reasonably believes to have been criminal or illegal and harmful to the public good; or

(6) to comply with other law or court order. .

NOTES:

COMMENT:

[1] The lawyer is part ofajudicial system charged with upholding the law. One of the lawyer's functions is to

advise clients so that they avoid any violation of the law in the proper exercise of their rights.

)

[2] The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not

only facilitates the full development of facts essential to proper representation of the client but also encourages people

to seek early legal assistance.

[3] Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the

maze of laws and regulations, deemed to be legal and correct. The common law recognizes that the client's confidences

must be protected from disclosure. Based upon experience, lawyers know that almost all clients follow the advice given,

and the law is upheld.

[4] A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of

information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the

lawyer even as to embarrassing or legally damaging subject matter.

[5] The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which

includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional

ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a

witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies

in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality

rule applies not merely to matters communicated in confidence by the client but also to all information relating to the

representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the

Rules of Professional Conduct or other law. See also Scope.

[6] The requirement of maintaining confidentiality of information relating to representation applies to government

lawyers who may disagree with the policy goals that their representation is designed to advance.

Authorized Disclosure

[7] A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the

representation, except to the extent that the client's instructions or special circumstances limit that authority. In

litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed, or in

negotiation by making a disclosure that facilitates a satisfactory conclusion.

[8) Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a

client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

Disclosure Adverse to Client

[9) The confidentiality rule is subject to limited exceptions. In becoming privy to information about a client, a

lawyer may realize that the client has used or intends to use the lawyer's services in the furtherance of criminal or

fraudulent conduct. Several situations are addressed by other rules. The lawyer may not counselor assist a client in

conduct that is criminal or fraudulent. See Rule 1.2(d). Similarly, a lawyer has a duty under Rule 3.3(a)(4) not to use

Page I

.·LexisNexis· .

I of I DOCUMENT

lOWA COURT RULES

CURRENT THROUGH THE APRIL 2009 SUPPLEMENT

CHAPTER 32. IOWA RULES OF PROFESSIONAL CONDUCT

CLIENT-LAWYER RELATIONSHIP

Iowa R o/Profl Conduct 32:1.6 (2009)

Review Court Orders which may amend this rule.

RULE 32: 1.6 Confidentiality of information

(a) 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 the disclosure is permitted by

paragraph (b) or required by paragraph (c).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably

believes necessary:

(I) to prevent reasonably certai~ death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to

the financial interests or property of anot,her and in furtherance of which the client has used or is using the lawyer's

services;

(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is

reasonably certain to result or hasresulted from the client's commission of a crime or fraud in furtherance of which the

client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to

establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.

believes necessary to prevent imminent death or substantial bodily harm.

Comment

[1] This rule governs the disclosure by a lawyer of information relating to the representation of a client during the

lawyer's representation of the client. See rule 32: 1.18 for the lawyer's duties with respect to information provided to the

lawyer by a prospective client, rule 32: 1.9(c)(2) for the lawyer's duty not to reveal information relating to the lawyer's

Page 1

1 of 1 DOCUMENT

Idaho Court Rules

'!** THIS DOCUMENT REFLECTS ALL RULE CHANGES RECENED THROUGH APRIL 16,2009 ***

IDAHO RULES OF PROFESSIONAL CONDUCT

CLIENT LAWYER RELATIONSHIP

Idaho Rules ofProfl Conduct 1.6 (2009)

Review Court Orders which may amend this Rule

RULE 1.6: CONFIDENTIALITY OF INFORMATION

(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent,

the disclosure is impliedly authorized in order to cany out the representation or the disclosure is permitted by paragraph

(b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably

believes necessary:

(l) to prevent the client from committing a crime, including disclosure of the intention to commit a crime;

(2) to prevent reasonably certain death or substantial bodily harm;

(3) to prevent, mitigate or rectifY substarltial injury to the financial interests or property of another that is reasonably

certain to result or has resulted from the client's commission of a crime in furtherance of which the client has used the

lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to

establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to allegations in any proceeding concerning the lawyer's representation of a client; or

(6) to comply with other law or a court order.

HISTORY: Revised effective July 1,2004

NOTES: Commentary

[1] This Rule governs the disclosure by a lawyer of information relating to the representation of a client during the

lawyer's representation of the client. See Rule 1.18 for the lawyer's duties with respect to information provided to the

lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer's duty not to reveal information relating to the lawyer's

prior representation of a former client and Rules 1.8(b) and l:9(c)(I) for the lawyer's duties with respect to the use of

Indiana Rules of Professional Conduct

Page 18 of 121

[5]

An agreement may not be made whose terms might induce the lawyer improperly to curtail

services for the client or perform them in a way contrary to the client's interest. For example, a lawyer should

not enter into an agreement whereby services are to be provided only up to a stated amount when it is

foreseeable that more extensive services probably will be required, unless the situation is adequately explained

to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or

transaction. However, it is proper to define the extent of serviees in light of the client's ability to pay. A lawyer

should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.

Prohibited Contingent Fees

[6]

. Paragraph (d) prohibits a lawyer from charging a contingent fee in a dOq:lestic relations matter

when payment is contingent upon the securing of a dissolution or obtaining custody of a child or upon the .

amount of maintenance or support or property settlement to be obtained.

Division of Fee

[7]

A division of fee is a single billing to a client covering the fee of two or more lawyers who are

not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which

neither alone could serve the client as well, and most often is used when the fee is contingent and the division is

between a referring lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee either on the

basis of the proportion of services they render or if each lawyer assumes responsibility for the representation as

a whole. In addition, the client must agree to the arrangement, including the share that each lawyer is to receive,

and the agreement must be confirmed in writing. Contingent fee agreements must be in a writing signed by the

client and must otherwise comply with paragraph (c) of this Rule. Joint responsibility for the representation

entails financial and ethical responsibility for the representation as if the lawyers were associated in a

partnership. A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is

competent to handle the matter. See Rule 1.1.

[8]

Paragraph (e) does not prohibit or regulate division of fees to be received in the future for work

done when lawyers were previously associated

in a law firm.

Disputes over Fees

[9]

If a procedure has been established for resolution of fee disputes, such as an arbitration or

mediation procedure established by the bar, the lawyer must comply with the procedure when it is mandatory,

and, even when it is voluntary, the lawyer should conscientiously consider submitting to it. Law may prescribe

a procedure for determining a lawyer's fee, for example, in representation of an executor or administrator, a

class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a

fee and a lawyer representing another party concerned with the fee should comply with the prescribed

procedure.

Adopted Sep. 30,2004, effective Jan. 1,2005.

Rule 1.6. Confidentiality of Information

(a)

A lawyer shall not reveal information relating to representation of a client unless the client gives

informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure

is permitted by paragraph (b).

http://www.in.gov/judiciary/rules/proCconduct/index.html

7/27/2009

Indiana Rules of Professional Conduct

Page 19 of 121

(b)

A lawyer may reveal information relating to the representation of a client to the extent the

lawyer reasonably believes necessary:

(1)

to prevent reasonably certain death or substantial bodily harm;

(2)

to prevent the client from committing a crime or from committing fraud that is

reasonably certain to result in substantial injury to the financial interests or property of

another and in furtherance of which the client has used or is using the lawyer~s services;

(3)

to prevent, mitigate or rectify substantial injury to the financial interests or property of

another that is reasonably certain to result or has resulted from the client's commission of

a crime or fraud in furtherance of which the client has used the lawyer's services;

(4)

to secure legal advice about the lawyer's compliance with these Rules;

( 5)

to establish a claim or defense on behalf of the lawyer in a controversy between the

lawyer and the client, to establish a defense to a criminal charge or civil claim against the

lawyer based upon conduct in which the client was involved, or to 'respond to allegations

in any proceeding concerning the lawyer's representation of the client; or

(6)

to comply with other law or a court order.

(c)

In the event of a lawyer's physical or mental disability or the appointment of a guardian or

conservator of an attorney's client files, disclosure of a client's name and files is authorized to the extent

necessary to carry out the duties of the person managing the lawyer's files.

Amended Oct. 30. 1992, effective Jan. 1, 1993; amended Sep. 30,2004, effective Jan. 1,2005.

Comment

[1]

This Rule governs the disclosure by a lawyer of information relating to the representation of a

client during the lawyer's representation of the client. See Rule 1.18 for the lawyer's duties with respect to

information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer's duty not to reveal

information relating to the lawyer's prior representation of a former client and Rules 1.8(b) and 1.9(c)( 1) for the

lawyer's duties with respect to the use of such information to the disadvantage of clients and former clients.

[2]

A fundamental principle in the client-lawyer relationship is that, in the absence of the client's

informed consent, the lawyer must not reveal information relating to the representation. See Rule l.O(e) for the

definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship.

The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer

even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the

client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without

exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and

regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow

the advice given, and the law is upheld.

[3]

The principle of client-lawyer confidentiality is given effect by related bodies of law: the

attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional

ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which

a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of

client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer

http://www.in.gov/judiciary/rules/proCconductiindex.html

7/27/2009

Page I

LEXSTAT KRPC-1.6

KANSAS COURT RULES

*** THIS DOCUMENT REFLECTS CHANGES RECEIVED THROUGH JULY 1,2009 ***

KANSAS SUPREME COURT RULES

RULES RELATING TO DISCIPLINE OF ATTORNEYS

RULE 226 KANSAS RULES OF PROFESSIONAL CONDUCT

CLIENT-LAWYER RELATIONSHIP

KRPC 1.6 (2009)

Review court orders which may amend this rule.

RULE 1.6 Confidentiality ofInformation

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after

consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as

stated in paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(I) To prevent the client from committing a crime; or

(2) to comply with requirements of law or orders of any tribunal; or

(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the

client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in

which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's

representation of the client.

Comment

[1] The lawyer is part ofajudicial system charged with upholding the law. One of the lawyer's functions is to

advise clients so that they avoid any violation of the law in the proper exercise of their rights.

[2] The observance of the ethical obligation ofa lawyer to hold inviolate confidential information of the client not

only facilitates the full development of facts essential to proper representation of the client but also encourages people

to seek early legal assistance.

[3] Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the

maze of laws and regulations, deemed to be legal and correct. The common law recognizes that the client's confidences

must be protected from disclosure. Based upon experience, lawyers know that almost all clients follow the advice given,

and the law is upheld.

[4] A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of

(9) If a procedure has been established for resolution of fee disputes, such as

an arbitration or mediation procedure established by the bar, the lawyer must comply

with the procedure when it is mandatory, and, even when it is voluntary, the lawyer

should conscientiously consider submitting to it. Law may prescribe a procedure for

determining a lawyer's fee" for example, in representation of an executor or

administrator, a class or a person entitled to a reasonable fee as part of the measure

. of damages. The lawyer entitled to such a fee and a lawyer representing another

party concerned with the fee should'comply with the prescribed procedure.

Advance Fee Arrangements

(10) If a lawyer collects an advance deposit on a fee or for expenses, or a flat

fee for services to be performed, the lawyer must deposit the funds in the lawyer's

trust account until the fee is earned or the expense incurred. at which time the funds

shall be promptly distributed. In the event the full amount that is held is not ultimately

earned. or due to other factors, such as termination of the attorney-client

relationship, is not reasonable, the funds must be returned to the client as provided

in Rule 1.16(d).

Non-refundable Retainers

(11) A lawyer may designate a fee arrangement as a non-refundable retainer

and upon receipt deposit such funds in the lawyer's operating account. The amount

of a non-refundable retainer fee must be reasonable in amount and comply with

Rule 1.5.

VIII. SCR 3.130(1.6) Confidentiality of information

SCR 3,130(1.6) shall read:

(a) 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 the disclosure is permitted by paragraph

(b).

(b) A lawyer may reveal information relating to the representation of a client to

the extent the lawyer reasonably believes necessary:

(1 )

to prevent reasonably certain death or substantial bodily harm;

(2)

Rules;

to secure legal advice about the lawyer's compliance with these

(3)

to establish a claim or defense on behalf of the lawyer in a

controversy between the lawyer and the client, to establish a defense to a

criminal charge or civil claim against the lawyer based upon conduct in which

the client was involved, or to respond to allegations in any proceeding,

including a disciplinary proceeding, concerning the lawyer's representation of

the client; or

(4)

to comply with other law or a-court order.

Comment

(1) This Rule governs the disclosure by a lawyer of information relating to the

representation of a client during the lawyer's representation of the client See Rule

1.18 for the lawyer's duties with respect to information provided to the lawyer by a

prospective Client, Rule 1.9(c)(2) for the lawyer's duty not to reveal information

relating to the lawyer's prior representation of a former client and Rules 1.8(b) and

1.9(c)(1) for the lawyer's duties with respect to the use of such information to the

disadvantage of clients and former clients.

(2) A fundamental principle in the client-lawyer. relationship is that, in the

absence of the client's informed consent, the lawyer must not reveal information .

relating to the representation. See Rule 1.0(e) for the definition of informed consent

This contributes to the trust that is the hallmark of the client-lawyer relationship. The

client is thereby encouraged to seek legal assistance and to communicate fully and

frankly with the lawyer even as to embarrassing or legally damaging subject matter.

The lawyer needs this information to represent the client effectively and, if

necessary, to advise the client to refrain from wrongful conduct Almost without

exception, clients come to lawyers in order to determine their rights arid what is, in

the complex of laws and regulations, deemed to be legal and correct. Based upon

experience, lawyers know that almost all clients follow the advice given, and the law

is upheld.

(3) The principle of client-lawyer confidentiality is given effect by related

bodies of law: the attorney-client privilege, the work product doctrine and the rule of

confidentiality established in professional ethics. The attorney-client privilege and

work-product doctrine apply in judicial and other proceedings in which a lawyer may

be called as a witness or otherwise required to produce evidence concerning a

client. The rule of client-lawyer confidentiality applies in situations other than those

where evidence is sought from the lawyer through compulsion of law. The

confidentiality rule, for example, applies not only to matters communicated in

confidence by the client but also to all information relating to the representation,

whatever its source. A lawyer may not disclose such information except as

authorized or required by the Rules of Professional Conduct or other law. See also

Scope.

(4) Paragraph (a) prohibits a lawyer from revealing information relating to the

representation of a client This prohibition also applies to disclosures by a lawyer

that do not in themselves reveal protected information but could reasonably lead to

the discovery of such information by a third person. A lawyer's use of a hypothetical

to discuss issues relating to the representation is permissible so long as there is no

Page I

I of I DOCUMENT

Louisiana Court Rules Annotated

a member of the LexisNexis Group

*** THIS DOCUMENT REFLECTS ALL CHANGES RECEIVED THROUGH May 21,2009. ***

*** Annotations current through May 12,2009. ***

ARTICLES OF INCORPORATION OF THE LOUISIANA STATE BAR ASSOCIATION

RULES OF PROFESSIONAL CONDUCT

CLIENT-LA WYER RELATIONSHIP

La. St. Bar Ass'n. Art. XVI § 1.6 (2009)

Rule 1.6. Confidentiality of information

(a) 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 the disclosure is permitted by

paragraph (b).

(b) A lawyer may reveal inform~tion relating to the representation of a client to the extent the lawyer reasonably

believes necessary:

(I) to prevent reasonably certain dyath or substantial bodily harm;

(2) to prevennhe client from committing a crime or fraud that is reasonably certain to result in substantial injury

to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's

services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is

reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the

client has used the lawyer's services.

(4)to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to

establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.

Page 1

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I of 1 DOCUMENT

MASSACHUSEITS COURT RULES

*** THIS DOCUMENT REFLECTS ALL CHANGES RECEIVED AS OF APRIL 15,2009 ***

SUPREME JUDICIAL COURT

A. RULES OF THE SUPREME nmICIAL COURT

CHAPTER THREE. ETHICAL REQUIREMENTS AND RULES CONCERNING THE PRACTICE OF LAW

Massachusetts Rules of Professional Conduct

CLIENT-LAWYER RELATIONSHIP

ALM Sup. Jud. Ct. Rule 3:07, RPC 1.6 (2008)

Review Court Orders which may amend this rule.

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal confidential information relating to representation of a client unless the client consents

after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and

except as stated in paragraph (b).

(6) A lawyer may reveal, and to the extent required by Rule 3.3, Rule 4.1(b), or Rule 8.3, must reveal, such

information:

(1) to prevent the commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result

in death or substantial bodily harm, or in,substantial injury to the financial interests or property of another, or to prevent

. the wrongful execution or incarceration of another;

(2) to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in

a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the

lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning

the lawyer's representation of the client;

(3) to the extent the lawyer reasonably believes necessary to rectify client fraud in which the lawyer's services have

been used, subject to Rule 3.3 (e);

(4) when permitted under these rules or required by law or court order.

as a client for the purposes of this rule. Lawyer assistance means assistance provided to a lawyer, judge, other legal

professional, or law student by a lawyer participating in an organized nonprofit effort to provide assistance in the form

of (a) counseling as to practice matters (which shall not include counseling a law student in a law school clinical

program) or (b) education as to personal health matters, such as the treatment and rehabilitation from a mental,

emotional, or psychological disorder, alcoholism, substance abuse, or other addiction, or both. A lawyer named in an

order of the Supreme Judicial Court or the Board of Bar Overseers concerning the monitoring or terms of probation of

another attorney shall treat that other attorney as a client for the purposes of this rule. Any lawyer participating in a

Page 2

ALM Sup. Jud. Ct. Rule 3:07, RPC 1.6

lawyer assistance program may require a person acting under the lawyer's supervision or control to sign a nondisclosure

form approved by the Supreme Judicial Court. Nothing in this paragraph (c) shall require a bar association-sponsored

ethics advisory committee, the Office of Bar Counsel, or any other &overnrnental agency advising on questions of

professional responsibility to treat persons so assisted as clients for the purpose of this rule.

mSTORY: Amended, effective March I, 1998

NOTES: EDITORIAL NOTE -

The 1997 court order, in the opening sentence of paragraph (b) of Rule 1.6, substituted "Rule 3.3, Rule 4. 1(b), or Rule

8.3" for "Rule 3.3 and Rule 4.1(b)".

COMMENT

[I] The lawyer is part ofajudicial system charged with upholding the law. One of the lawyer's functions is to

advise clients so that they avoid any violation of the law in the proper exercise of their rights.

[2] The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not

only facilitates the full development of facts essential to proper representation of the client but also encourages people

to seek early legal assistance.

[3] Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the

maze of laws and regulations, deemed to be legal and correct. The common law recognizes that the client's confidences

must be protected from disclosure.

[4] A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of

information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the

lawyer even as to embarrassing or legally damaging subject matter.

[5] The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (and the

related work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics.

The attorney-client privilege applies injddicial and other proceedings in which a lawyer may be called as a witness or

otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in

situations other than those where evidence is sought from the lawyer through compulsion oflaw. The confidentiality

rule applies not merely to matters communicated in confidence by the client but also to virtually all information relating

to the representation, whatever its source. The term "confidential information" relating to representation of a client

therefore includes information described as "confidences" and "secrets" in former DR 4-101(A) but without the

limitation in the prior rules that the information be "embarrassing" or "detrimental" to the client. Former DR 4-101(A)

provided: "Confidence" refers to information protected by the attorney-client privilege under applicable law, and

"secret" refers to other information gained in the professional relationship that the client has requested be held inviolate

or the disclosure of which would be embarrassing or would likely to be detrimental to the client." See also Scope.

[5A] The word "virtually" appears in the fourth sentence of paragraph 5 above to reflect the common sense

understanding tharnot every piece of information that a lawyer obtains relating to a representation is protected

confidential information. While this understanding may be difficult to apply in some cases, some information is so

widely available or generally known that it need not be treated as confidential. The lawyer's discovery that there was

dense fog at the airport at a particular time does not fall within the rule. Such information is readily available. While a

client's disclosure of the fact of infidelity to a spouse is protected information, it normally would not-be after the client

publicly discloses such information on television and in newspaper interviews. On the other hand, the mere fact that

information disclosed by a client to a lawyer is a matter of public record does not mean that it may not fall within the

pr~tection of this rule. A client's disclosure of conviction of a crime in a different state a long time ago or disclosure of a

.secret marriage would be protected even if a matter of public record because such information was not generally known.

Page I

.-LexisNexis·

I of I DOCUMENT

Michie's Annotated Code of Maryland

Maryland Rules

Group.

*** This document reflects changes received through May 1, 2009 ***

*** Annotations current through April 17,2009 ***

MARYLAND RULES

APPENDIX: THE MARYLAND LAWYERS' RULES OF PROFESSIONAL CONDUCT

CLIENT-LAWYER RELATIONSHIP

Md Lawyer's R. Profl Conduct 1.6 (2009)

Review Court Orders which may amend this Rule.

Rule 1.6. Confidentiality of Information.

(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent,

the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by

paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably

•

believes necessary:.

(I) to prevent reasonably certain death or substantial bodily harm.

. (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to

the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's

services.

(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is

reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the

client has used the lawyer's services.

(4) to secure legal advice about the lawyer's compliance with these Rules, a court order or other law.

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to

establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in

which the client was involved or to respond to allegations in any proceeding concerning the lawyer's representation of

the client; or.

(6) to comply with these Rules, a court order or other law.

NOTES: COMMENT

Page I

I of I DOCUMENT

MINNESOTA STATUTES -- COURT RULES

*** THIS DOCUMENT IS CURRENT THROUGH DECEMBER 1,2008 ***

MINNESOTA RULES OF PROFESSIONAL CONDUCT

CLIENT-LAWYER RELATIONSHIP

Minn. Rules ofProfl Conduct 1.6 (2008)

Review Court Orders which may amend this Rule.

1.6 Confidentiality of Information

(a) Except when permitted under paragraph (b), a lawyer shall not knowingly reveal information relating to the

representation of a client.

(b) A lawyer may reveal information relating to the representation of a client if:

(1) the client gives informed consent;

(2) the information is not protected by the attorney-client privilege under applicable law, the client has not requested

that the information be held inviolate, and the lawyer reasonably believes the disclosure would not be embarrassing or

likely detrimental to the client;

(3) the lawyer reasonably believes th.e disclosure is impliedly authorized in order to carry out the representation;

(4) the lawyer reasonably believes the disclosure is necessary to prevent the commission of a fraud that is

reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of

which the client has used or is using the lawyer's services or nt has used or is using the lawyer's services or to prevent

the commission of a crime;

(5) the lawyer reasonably believes the disclosure is necessary to rectify the consequences of a client's criminal or

fraudulent act in the furtherance of which the lawyer's services were used;

(6) the lawyer reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial

bodily harm;

(7) the lawyer reasonably believes, the disclosure is necessary to secure legal advice about the lawyer's compliance

with these rules;

(8) the lawyer reasonably believes the disclosure is necessary to establish a claim or defense on behalf of the lawyer

in an actual or potential controversy between the lawyer and the client, to establish a defense in a civil, criminal, or

disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond in any

proceeding to allegations by the client concerning the lawyer's representation of the client;

· Page 2

Minn. Rules of Prof1Conduct 1.6

(9) the lawyer reasonably believes the disclosure is necessary to comply with other law or a court order; or

(10) the lawyer reasonably believes the disclosure is necessary to inform the Office of Lawyers Professional

Responsibility of knowledge of another lawyer's violation of the Rules of Professional Conduct that raises a substantial

question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. See Rule 8.3.

mSTORY: (Amended effective January 1, 1990; amended April 14, 1992, effective June 1, 1992; amended effective

Octoberl,2005.)

NOTES:

Comment--1991

This rule governs the disclosure by a lawyer of information relating to the representation of a client during the

lawyer's representation of the client. See Rule 1.18 for the lawyer's duties with respect to information provided to the

lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer's duty not to reveal information relating to the lawyer's

prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for the lawyer's duties with respect to the use of

such information to the disadvantage of clients and former clients.

A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the

lawyer must not reveal information relating to the representation. See Rule 1.0(f) for the definition of informed consent.

This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to

seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging

subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client

to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights

and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers

know that almost all clients follow the advice given, and the law is upheld.

The principle of client-lawyer confideptiality is given effect by related bodies of law; the attorney-client privilege, the

work-product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and

work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise

required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other

than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example,

applies not only to matters communicated in confidence by the client but also to all information relating to the

representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the

Rules of Professional Conduct or other law. See also Scope.

Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition

also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead

to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the

representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the

identity of the client or the situation involved.

Authorized Disclosure.

Except to the extent that the client's instructions or special circwnstances limit that authority, a lawyer is impliedly

authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for

example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure

that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm's practice, disclose

Page I

.·LexisNexis·

I of 100 DOCUMENTS

MISSOURI RULES OF COURT

*** THIS DOCUMENT REFLECTS ALL CHANGES RECEIVED THROUGH JULY 1, 2007 ***

SUPREME COURT RULES

RULES GOVERNING THE MISSOURI BAR AND THE ruDICIARY

RULE 4. RULES OF PROFESSIONAL CONDUCT

CLIENT-LAWYER RELATIONSHIP

Mo. Sup. Ct. R. 4-1.6 (2007)

Review Court Orders which may amend this Rule

4-1.6. Confidentiality ofInformation

(a) A lawyer shalI 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 the disclosure is permitted by

Rule 4-1.6(b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably

believes necessary:

(l) to prevent death or substantial bodily harm that is reasonably certain to occur;

(2) to secure legal advice about the tawyer's compliance with these Rules;

(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to

establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to alIegations in any proceeding concerning the lawyer's representation of the client; or

(4) to comply with other law or a court order.

COMMENT

[I] This Rule 4-1.6 governs the disclosure by a lawyer of informalionrelating to the representation of a client

during the lawyer's representation of the client. See Rule 4-1.18 for the lawyer's duties with respect to information

provided to the lawyer by a prospective client, Rule 4-1.9(c)(2) for the lawyer's duty not to reveal information relating

to the lawyer's prior representation of a former client, and Rules 4-1.8(b) and 4-3 31.9(c)(I) for the lawyer's duties with

respect to the use of such information to the disadvantage of clients and former clients.

[2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent,

the lawyer must not reveal information relating to the representation. See Rule 4-1.0(e) for the definition of "informed

consent." This contributes to the trust that is the halImark of the client-lawyer relationship. The client is thereby

encouraged to seek legal assistance and to communicate fulIy and frankly with the lawyer even as to embarrassing or

legalIy damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary,

to'advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to

Page I

.-LexisNexis·

1 of 1 DOCUMENT

MISSISSIPPI COURT RULES ANNOTATED

Matthew Bender & Company, Inc., a member of the LexisNexis Group.

*** THIS DOCUMENT REFLECTS CHANGES RECEIVED THROUGH JULY 1,2009 ***

MISSISSIPPI RULES OF PROFESSIONAL CONDUCT

CLIENT-LAWYER RELATIONSHIP

. Miss. RPC Rule 1.6

(2009)

Review Court Orders which may amend this Rule

Rule 1.6. Confidentiality of information.

(a) 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 the disclosure is permitted by

paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from commi,tting a crime or fraud that is reasonably certain to result in substantial injury to

the financial interest or property of another and in furtherance of which the client has used or is using the lawyer's

services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is

reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the

client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to

establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

(6) to comply with other law or a court order.

Assistance Committee shall not reveal any information learned through the intervention from or relating to the lawyer,

judge or law student on whom the intervention is conducted except as may be permitted by the Rules of Discipline of

the Mississippi Bar or required by law or court order.

Page 2

Miss. RPC Rule 1.6

(d) A lawyer shall reveal information to the Lawyers and Judges Assistance Committee in accordance with

approved monitoring procedures ofthe Lawyers and Judges Assistance Committee relating to the status of compliance

of a lawyer, judge or law student with the terms and conditions imposed upon the lawyer, judge or law student by the

. Lawyers and Judges Assistance Committee.

(e) A lawyer may reveal such information to the extent required by law or court order.

mSTORY: Amended June 23,1994; amended April 18, 2002; amended effective November 3,2005 to add

circumstances under which disclosure of otherwise confidential information is permitted

NOTES:

COMMENT

The lawyer is part ofajudicial system charged with upholding thelaw. One of the lawyer's functions is to advise

clients so that they avoid any violation of the law in the proper exercise of their rights.

The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only

facilitates the full development of facts essential to proper representation ofthe client but also encourages people to

seek early legal assistance.

A fundamental principle in the client-lawyer relationship is that, in the absence ofthe client's informed consent, the

lawyer must not reveal information relating to the representation. See Terminology for definition of "informed consent."

This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to

seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging

subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client

to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights

and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers

know that almost all clients follow the advice given, and the law is upheld.

The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege

the work product doctrine, and the rule of confidentiality established in professional ethics. The attorney-client and the

work product doctrine apply in judiciala,nd other proceedings in which a lawyer may be called as a witness or otherwise

required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other

than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example,

applies not only to matters communicated in confidence by the client but also to all information relating to the

representation, whatever the source. A lawyer may not disclose such information except as authorized or required by the

Rules of Professional Conduct or other law. See also Scope.

The requirement of maintaining confidentiality of information relating to representation applies to government

lawyers who may disagree with the policy goals that their representation is designed to advance.

Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This

prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could

reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues

relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to·

ascertain the identity of the client or the situation involved.

Authorized Disclosure. -- Except to the extent that the client's instructions or special circumstances limit that

authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the

representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot

properly be disputed or to make adisclosure that facilitates a satisfactory conclusion to a matter.

Page 1

.·LexisNexis·

1 of 100 DOCUMENTS

MONTANA RULES OF COURT

*** THIS DOCUMENT REFLECTS ALL RULES IN EFFECT AS OF DECEMBER 31, 2007 ***

RULES OF PROFESSIONAL CONDUCT

CLIENT-LAWYER RELATIONSHIP

MT Prof Conduct R.l.6 (2007)

Review Court Orders which may amend this Rule

RULE 1.6 CONFIDENTIALITY OF INFORMATION

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after

consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as

stated in paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act that the

lawyer believes is likely to result ip. imminent death or substantial

bodily harm; or

(2) to establish a claim or defense on behalf of the lawyer in a

controversy between the lawyer and the client, to establish a defense

to a criminal charge or civil claim against the lawyer based upon

conduct in which the client was involved, or to respond to allegations

in any proceeding concerning the lawyer's representation of the.

client.

Page 1

.·LexisNexis·

I of 1 DOCUMENT

NEBRASKA RULES OF COURT ANNOTATED

a member of the LexisNexis Group.

*** COURT RULES CURRENT THROUGH APRIL 1,2009 AND ANNOTATIONS CURRENT THROUGH

MARCH 1,2009. ***

CHAPTER 3. ATTORNEYS AND THE PRACTICE OF LAW

ARTICLE 5. NEBRASKA RULES OF PROFESSIONAL CONDUCT

Neb. Ct. R. a/Prof Cond § 3-501.6 (2009)

Review Court Orders which may amend this Rule.

§ 3-501.6. Confidentiality of information

(a) 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 the disclosure is permitted by

paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably

believes necessary:

(1) to prevent the client from committing a crime or to prevent reasonably certain death or substantial bodily

harm;

(2) to secure legal advice about the lawyer's compliance with these Rules;

(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to

establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was

involved or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(4) to comply with other law or a court order.

Assistance Program or an employee of the Nebraska Lawyers Assistance Program and a lawyer who seeks or receives

assistance through that committee or that program shall be the same as that of lawyer and client for the purposes of the

application of Rule 1.6.

NOTES: COMMENT.

[1] This Rule governs the disclosure by a lawyer of information relating to the representation of a client during the

lawyer's representation of the client. See Rule 1.18 for the lawyer's duties with respect to information provided to the

lawyer by a prospective client, Rule I.9(c)(2) for the lawyer's duty not to reveal information relating to the lawyer's

prior representation of a former client and Rules I.8(b) and I.9(c)(I) for the lawyer's duties with respect to the use of

such information to the disadvantage of clients and former clients.

Page 1

1 of 100 DOCUMENTS

NEVADA COURT RULES ANNOTATED

a member of the LexisNexis Group

*** CURRENT THROUGH UPDATES RECEIVED BY APRIL 27, 2009 ***

*** ANNOTATIONS CURRENT THROUGH MAY 8, 2009 ***

NEVADA RULES OF PROFESSIONAL CONDUCT

CLIENT-LAWYER RELATIONSHIP

Nev. Rules o/Profl Conduct 1.6 (2009)

Review court orders which may amend this Rule.

RULE 1.6. Confidentiality of Information.

(a) A lawyer shall not reveal information relating to representation of a client ~less the client gives informed consent,

the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by

paragraphs (b) and (c).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably

believes necessary:

(1) To prevent reasonably certain death or substantial bodily harm;

(2) To preventthe client from committing a criminal or fraudulent act in furtherance of whiCh the client has used or

is using the lawyer's services, but the lawyer shall, where practicable, first make reasonable effort to persuade the client

to take suitable action;

(3) To prevent, mitigate, or rectify the consequences of a client's criminal or fraudulent act in the commission of

which the lawyer's services have been or are being used, but the lawyer shall, where practicable, first make reasonable

effort to persuade the client to take corrective action;

(4) To secure legal advice about the lawyer's compliance with these Rules;

(5) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to

establish a defense to a ·criminalcharge or civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) To comply with other law ora court order.

believes necessary to prevent a criminal act that the lawyer believes is likely to result in reasonably certain death or

substantial bodily harm.

Page I

.·LexisNexis·

10fiDOCUMENT

NEW HAMPSHIRE COURT RULES

a member of the LexisNexis Group.

*** RULES CURRENT WITH AMENDMENTS RECEIVED THROUGH MAY 6, 2009 ****

*** ANNOTATIONS CURRENT THROUGH CASES DECIDED MARCH 19,2009 ****

NEW HAMPSHIRE RULES OF PROFESSIONAL CONDUCT

CLIENT-LAWYER RELATIONSHIP

NH. Rules ofProfI Conduct Rule 1.6 (2009)

Rule 1.6. Confidentiality of Information

(a) 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 the disclosure is permitted by

paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certai~ death or substantial bodily harm or to prevent the client from committing a

criminal act that the lawyer believes is likely to result in substantial injury to the financial interest or property of

another; or

(2) to secure legal advice about the lawyer's compliance with these Rules; or

(3) to establish a claim or defense on behalf of the lawyer in controversy between the lawyer and the client, to

establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(4) to comply with other law or a court order.--Adopted July 25, 2007, eff. January 1,2008.

NOTES:

Ethics Committee Comment

The New Hampshire Rule permits the disclosure of any criminal act involving death or bodily harm or substantial

injury to the financial interest or property of another. Rule 1.6 should not be viewed as a departure from the general rule

of client confidentiality, and should not be interpreted to encourage lawyers to disclose the confidences of their clients.

The disclosure of client confidences is an extreme and irrevocable act. Hopefully no New Hampshire lawyer will be

subject to censure for either disclosing or failing to disclose client confidences, as the lawyer's individual conscience

may dictate.

Page I

LEXSTAT N.J. RPC 1.6

NEW JERSEY COURT RULES ANNOTATED

a member of the LexisNexis Group

*** RULES CURRENT THROUGH APRIL 28, 2009 ***

*** ANNOTATIONS CURRENT THROUGH MAY 20, 2009 ***

RULES GOVERNING THE COURTS OF THE STATE OF NEW JERSEY

PART I. RULES OF GENERAL APPLICATION

APPENDIX TO PART I RULES OF PROFESSIONAL CONDUCT

RULE 1.6. CONFIDENTIALITY OF INFORMATION

NJ. Court Rules, RPC 1.6 (2009)

Review Court Orders which may amend this Rule

RPC 1.6. Confidentiality of information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after

consultation, except for disclosures that are impliedly authorized in order to carrj out the representation, and except as

stated in paragraphs (b), (c), and (d).'

(b) A lawyer shall reveal such infopnation to the proper authorities, as soon as, and to the extent the lawyer

reasonably believes necessary, to prevent the client or another person:

(1) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in

death or substantial bodily harm or substantial injury to the financial interest or property of another;

(2) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to

perpetrate a fraud upon a tribunal.

person threatened to the extent the lawyer reasonably believes is necessary to protect that person from death, substantial

bodily harm, substantial financial injury, or substantial property loss.

(d) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(l) to rectifY the consequences of a client's criminal, illegal or fraudulent act in the furtherance of which the

lawyer's services had been used;

(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or

to establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer based upon the

conduct in which the client was involved; or

Page 2

N.J. Court Rules, RPC 1.6

(3) to comply with other law.

(e) Reasonable belief for purposes of RPC 1.6 is the belief or conclusion of a reasonable lawyer that is based

upon information that has some foundation in fact and constitutes prima facie evidence of the matters referred to in

subsections (b), (c), or (d).

HISTORY; Adopted July 12, 1984 to be effective September 10, 1984; paragraphs (a) and (b) amended, new paragraph

paragraph (e) November 17,2003 to be effective January 1,2004.

LexisNexis (R) Notes:

CASE NOTES

1. Where an attorney had formerly jointly represented the Chapter 7 debtor and an alleged patent infringer in a

patent infringement case, the patent infringer's subsequent malpractice suit against the attorney did not waive the

Chapter 7 debtor's attorney-client privilege, so as to permit the patent owner to obtain discovery from the attorney in its

proceeding against the Chapter 7 debtor seeking to deny the debtor a bankruptcy discharge; permitting discovery in

these circumstances would abrade both the attorney-client privilege and the intent of the Rules ofProfessional Conduct.

Fuji Photo Film Co. v. Benun (In re Benun), 339 B.R. 115, 2006 Bankr. LEXIS 368, 46 Bankr. Ct. Dec. (LRP) 52

(Bankr. D.NJ. 2006).

2. Attorney who represented defendant in prior bail proceedings was erroneously permitted to defend his

co-defendant at their joint trial for possession of cocaine, in which their defenses were mutually antagonistic, because

the attorney's appearance on behalf of defendant with respect to the bail motion constituted representation under the

prohibition of N.J. R. Prof Conduct 1.9, ,and an attorney's appearance on behalf of an accused at pretrial release

hearings constitutes a significant part of his representation of the client. State v. Sanders, 260 NJ. Super. 491, 616 A.2d

1345, 1992 NJ. Super. LEXIS 401 (App.Div. 1992).

3. Where an attorney had formerly jointly represented the Chapter 7 debtor and an alleged patent infringer in a

patent infringement case, the patent infringer's subsequent malpractice suit against the attorney did not waive the

Chapter 7 debtor's attorney-client privilege, so as to permit the patent owner to obtain discovery from the attorney in its

proceeding against the Chapter 7 debtor seeking to deny the debtor a bankruptcy discharge; permitting discovery in

these circumstances would abrade both the attorney-client privilege and the intent of the Rules ofProfessional Conduct.

Fuji Photo Film Co. v. Benun (In re Benun), 339 B.R. 115, 2006 Bankr. LEXIS 368, 46 Bankr. Ct. Dec. (LRP) 52

(Bankr. D.NJ. 2006).

4. Attorney who represented defendant in prior bail proceedings was erroneously permitted to defend his

co-defendant at their joint trial for possession of cocaine, in which their defenses were mutually antagonistic, because

the attorney's appearance on behalf of defendant with respect to the bail motion constituted representation under the

prohibition ofNJ. R. Prof Conduct 1.9, and an attorney's appearance on behalf of an accused at pretrial release

hearings constitutes a significant part of his representation of the client. State v. Sanders, 260 NJ. Super. 491, 616 A.2d

1345, 1992 NJ. Super. LEXIS 401 (App.Div. 1992).

. 5. Attorney who represented defendant in prior bail proceedings was erroneously permitted to defend his

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1 of 1 DOCUMENT

MICHIE'S ANNOTATED RULES OF NEW MEXICO

a member of the LexisNexis Group.

*** FEDERAL RULES CURRENT THROUGH APRIL 1,2009 ***

*** ANNOTATIONS CURRENT THROUGH 2009-NMCA-035 AND 2009-NMSC-OIO ***

RULES OF PROFESSIONAL CONDUCT

ARTICLE 1. CLIENT-LAwyER RELATIONSHIP

NM R. Prof Conduct /6-106 (2009)

Review court orders that may amend this rule.

16-106 Confidentiality of information

A. Disclosure of information generally. 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 the disclosure is permitted by Paragraph B ofthis rule.

B. Disclosure of inform<:ttion; specific circumstances. A lawyer may reveal information relating to the

representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury

to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's

services;

(3) to prevent, mitigate or rectifY substantial injury to the financial interests or property of another that is

reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the

client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to

establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was

involved or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.

NOTES: OFFICIAL COMMENT

COMMITTEE COMMENTARY

[As amended, effective November 3,2008.]

Page I

.·LexisNexis·

I of I DOCUMENT

ANNOTATED RULES OF NORTII CAROLINA

a member of the LexisNexis Group.

*** THIS DOCUMENT REFLECTS CHANGES RECEIVED THROUGH APRlL 15,2009 ***

*** ANNOTATIONS CURRENT THROUGH JANUARY 12,2009 ***

THE REVISED RULES OF PROFESSIONAL CONDUCT OF THE NORTH CAROLINA STATE BAR

CLIENT-LAWYER RELATIONSHIP

NC. Prof Condo Rule 1.6 (2009)

Review Court Orders that may amend this rule

Rule 1.6. Confidentiality of infonnation.

(a) A lawyer shall not reveal infonnation acquired during the professional relationship with a client unless the client

gives infonned consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure

is pennitted by paragraph (b).

(b) A lawyer may reveal infonnation protected from disclosure by paragraph (a) to the extent the lawyer reasonably

believes necessary:

(1) to comply with the Rules of Professional Conduct the law or court order;

(2) to prevent the commission of a crime by the client;

(3) to prevent reasonably certain death or bodily harm;

(4) to prevent, mitigate, or rectifY the consequences of a client's criminal or fraudulent act in the commission of

which the lawyer's services were used;

(5) to secure legal advice about the lawyer's compliance with these Rules;

(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client; to

establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was

Involved; or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(7) to comply with the rules of a lawyers' or judges' assistance program approved by the North Carolina State Bar

or the North Carolina Supreme Court.

an agent of a lawyers' or judges' assistance program approved by the North Carolina State Bar or the North Carolina

Page 2

N.C. Prof. Condo Rule 1.6

Supreme Court regarding another lawyer or judge seeking assistance or to whom assistance is being offered. For the

purposes of this Rule, "client" refers to lawyers seeking assistance from lawyers' or judges' assistance programs

. approved by the North Carolina State Bar or the North Carolina Supreme Court.

NOTES: COMMENT

[I] This Rule governs the disclosure by a lawyer of information relating to the representati

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