# UNITED STATES DEPARTMENT OF LABOR > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Asec%3A822236919e93df3e ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text UNITED STATES DEPARTMENT OF LABOR ADMINISTRATIVE REVIEW BOARD JACK R. T. JORDAN , Complainant, v. 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 1 STATEMENT OF THE CASE ' 5 ARGUMENT 7 I. II. AN EXPRESS PROVISION OF FEDERAL LAW GOVERNS THE PRIVILEGE ISSUES IN THIS WHISTLEBLOWER PROCEEDING ' 7 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 11 A. B. Attorneys May Use Part 205 Reports Whenever Their Compliance with Part 205 is Uln Issue," Including to Establish a Whistleblower Claim 11 1. Plain Meaning of the Regulation 12 2. The Commission's Comments in Adopting the Regulation Support the Attorney-Whistleblower's Use of Part 205 Reports 16 Even if Federal Common Law Applied, Sprint's Argument is Unavailing 22 t C. 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 26 29 TABLE OF AUTHORITIES Cases Alexander v. Tandem Staffing Solutions, Inc., 881 So.2d 607 (Fla. App. 2004) .. ,' 19 Allstate Ins. v. Hague, 449 U.S. 302 (1981) 9 (1997) 22 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 8 Blackburn v. Reich, 79 F.3d 1375 (4th Cir. 1996) 16 Botsford v. Blue Cross & Blue Shield of Montana, Inc., 314 F.3d 390 (9th Cir. 2002) 8 Burkhart v. Semi tool, Inc., 5 P.3d 1031 (Mont. 2000) Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 19 (1984) 22 Chrysler Corp. v. Brown, 441 U.S. 281 (1979) 8 "Clemes v. Del Norte County Unified Sch. Dist., 843 F.Supp. 583 (N.D. Cal. 1994) " 16 Coons v. Secretary of U.S. Dep't of Treasury, 383 F.3d 879 (9th Cir. 2004) 15 Crews v. Buckman Labs Int' 1, Inc., 78 S.W.3d 852 (Term. 2002) 19 Dixon v. United States, 381 U.S. 68 (1965) 9 Forest Watch v. U.S. Forest Serv., 410 F. 3d 115 (2nd Cir. 2005) 12 Griffin Indus. v. United States, 27 Fed. Cl. 183 (Fed. Cl. 1992) 13 Haley v. Fiechter, 953 F.Supp. 1085 (E.D. Mo. 1997) 16 Haley v. Retsinas, 138 F.3d 1245 (8th Cir. 1998) 16 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) 15 Illinois v. Milwaukee, 406 U.S. 91 (1972) 8,8-9 Kachmar v. Sunguard Da ta Sys tems, Inc., 109 F. 3d 173 (3d Cir. 1997) 27 Kappler v. Shalala, 840 F.Supp. 582 (N. D. Ill. 1994) 13 Kupiec v. Republic Fed. Say. & Loan Ass'n, 512 F.2d 147 (7th Cir. 1975) 8 (6th Cir. 1997) 12 In re Laurain, 113 F.3d 595 Long Island Care at Home Ltd. v. Coke, 551 U. S. 158 (2007) 22 181 15 Lowe v. SEC, 472 U.S. (1985) Lugosch v. Pyramid Co., 435 F.3d 110 (2d Cir. 2006) ' 29 Martin v. OSHA, 499 U. S .144 (1991) 22 (1981) 8 Milwaukee v. Ill., 451 U.S. 304 National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) 22 Neal v. Honeywell, Inc., 826 F.Supp. 266 (N.D. Ill. 1993) 16 Oneida County, N.Y. v. Oneida Indian Nation of N.Y. State, 470 U.S. 226 (1985) 8 Pfizer Inc. v. Heckler, 735 F.2d 1502 (D. C. Cir. 1984) 12 Pinter v. Dahl, 486 U.S. 622 (1988) 15 Press v. Quick & Reilly, Inc, 218 F.3d 121 (2'd Cir. 2000) 22 Roth v. Perseus, LLC, (2d ~ir. 2008) 522 F.3d 242 22 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) 15 (2002) 15 SEC v. Zandford, 535 U.S. 813 Siedle v. Putnam Inv., 147 F.3d 7 (1st Cir. 1998) 26 Sompo Japan Ins. Co. of Am. v. Union Pac. R.R., 456 F. 3d 54 (2d Cir. 2006) 8 Spang v. United States, 791 F.2d 906 (Fed. Cir. 1986) 13 Spratley v. State Fann Mut. Auto. Ins. Co., 78 P.3d 603 (Utah 2003) 19 Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275 (11th Cir. 2005) ... ~ . . . . . . . . . . . . . . . . . . . . • . . . 15 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) 21 United Cigar Whelan Stores Corp. v. United States, 113 F.2d 340 (9th Cir. 1940) 13 United States v. Bucher, 375 F.3d 929 (9th Cir. 2004) 12 United States v. MO$cony, 927 F.2d 742 (3d Cir. 1991) 23, 25 Uni ted States v. Valentine, 401 F.3d 609 - 26 2007) 18 (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) 8 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 passim 1 1 1 2 passim Regulations 17 C.F.R. 1980.108(b) 17 C.F.R. 205 1 ....................................... , 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 3 3 3,4 ; passim 5, ~ 12 (b) (6') 27 27 29 27 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 , .18 18 Ark. Rule 1.6 (b) (5) 18 Colo. Rule1.6(c) 18 Conn. Rule 1.6 (d) ' ',' , .. 18 Del. Rule 1.6(b) (5) 18 Fla. Rule 4-1.6 (c) (2) 18 Ga. Rule 1.6(b) (J,) (iii) 18 Haw. Rule 1.6 (c) (3) 18 Idaho Rule 1.6 (b) (5) 18 Ind. Rule 1.6 (b) (5) " .18 Ia. Rule 32:1.6(b) (5) 18 Kan. Rule 1.6 (b) (3) 18 Ky. Rule 1.6(b) (2) 18 La. Rule 1.6(b) (2) 18 Md. Rule 1.6(b) (5) 18 Mass. Rule 1.6(b) (2) ~ 18 Minn. Rule 1.6 (b) (8) 18 Miss. Rule 1.6(b) (2) 18 Mo. S. Ct. Rule 4-1.6(b) (2) 18 Mont. Rule 1.6 (b) (3) ~ , 18 Neb. Rule 1.6 (b) (3) 18 Nev. Rule 156 (3) (b) 18 N.H. Rule 1.6(b) (2) 18 N.J. Rule 1.6(d) (2) 18 N.M. Rule 16-106 (D) 18 N.C. Rule 1.6(b) (6) '" 18 N . D . Rul e 1. 6 (e) 18 N.Y. D.R. 4-101-c 24, 25-26 Ohio Rule 1.6(b) (5) .1 18 Okla. Rule 1.6 (b) (3) 18 Or. Rule 1.6(b) (4) 18 Pa. Rule 1.6(b) (4) ' 18 R.I. Rule 1.6 (b) (2) 18 S.C. Rule 1.6(b) (2) 18 S.D. Rule 1.6(b) (3) 18 Tenn. Rule 1.6(b) (3) 18 Tex. Rule 1.6 (c) (5) 18 Utah Rule 1.6(b) (3) . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Vt. Rule 1.6 (c) (2) 18 Va. Rule 1.6(b) (2) 18 Wash. Rule 1.6 (b) (2) 18 W. Va. Rule 1.6 (b) (2) 18 ' Wise. Rule 1.6 (c) (2) 18 Wy. Rule 1.6(b) (2) 18 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 19 2 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 2 2 2 Lawyering . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . 15, 19 Oregon Formal Ethics Opinion 136 (1994) 19 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) 21 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 of 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 an urges the Board to 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 is 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 a 78m(a), (b). significant Attorneys employed by role in 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 by Commission has The issuers who applicable do report not to a management the strong retaliate disclosure interest against evidence federal of 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" in 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 to Congressional this for representing the protection of mandate, the Y 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."). Y. 15 U.S.C. 7245. 2 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 If 205 report )!I first to the the does not receive II responsell~ from the attorney issuer's chief an 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. 1I 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 II 3 ). 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, or 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, or litigation attorney's compliance with this part is in issue." is entirely consistent with the majority of state bars, in 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 in defenses" in litigation against a client. issuer's response is appropriate. 4 support of "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 of the risk that they may be disclosed publicly. Accordingly, as we address below (pp. 26-29), we respectfully urge the Board to ("ALJs"), as permitted under the Department of Labor's Rules of Practice, 29 C.F.R. encourage Administrative to 18.46, issue "protective Law Judges or other orders," when appropriate, to minimize public disclosure of client confidences and to narrow their use in Section 806 proceedings, consistent with the practice of ~afeguarding client confidences observed in 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 5 [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." at 13 (emphasis allegation that added). he was ALJ Decision The ALJ further noted that terminated for reporting Jordan's evidence of 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 6 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 is "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 to bar the introduction of evidence in a federal whistleblower action between an attorney and his former issuer client "is an evidentiary matter that question of federal law."l/ 1! 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). 7 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 8 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 of SOX Section 307 demonstrates (1965). that the Commission's promulgation of Section 205.3 (d) (1) is consistent with that Congressional mandate. Congress, by 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. I 9 instructed the Commission to issue an "up the ladder" reporting requirement for an issuer's lawyer who believes a material violation of the federal securities laws to have occurred. 121 the same time, and in the same statute, At 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 to promulgate minimum standards of professional conduct in the "public interest and for the protection of 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. in Furthermore, permitting the use of such communicati'ons Section aggrieved by 806 proceedings protects any purported retaliation attorney-whistleblowers by their employers .12.1 W 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. " ). W 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 10 Finally, permitting communications is well attorney-whistleblowers to 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 A. 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 17 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) or any response .thereto (or the contemporaneous record thereof) may be used by an attorney in connection with any investigation, proceeding, or litigation in 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). 11 17 C.F.R. The 205.3 (d) (1) . plain language of this provision supports its application to whistleblower claims where the report made by obligations is relevant to the claim against the attorney's issuer-employer. In addition, an attorney pursuant the Commission's to his comments Part in 205 promulgating Section 205.3(d) (1) also support this interpretation. 1. 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 so long to the as the Part 205 report attorney-whistleblower's is 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») m 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) . 12 · Conduct Rules authorizes the disclosure of client confidences, and that attorneys are per se barred from disclosing such communications.unless their clients have accused them of a breach of 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 or an attorney's her compliance use is This is as noted of 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 by 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 ~I 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"). 13 than what Sprint claims and limitations that Sprint would unambiguous text. Nothing in in no way contains any have the Board the plain language read of· the into of 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. as purely "offensive" in nature is A SOX whistleblower complaint is quintessentially a defensive reaction to an employer's allegedly i!TIprope,r ·adv·erse action, not a purely "offensive" action whistleblower. To eligible file whistleblower action, be an to attorney must by the attorney­ a 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 of 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 is attempting allegedly to restore (rather than preserve) the status quo, it is reasonable to view the employee as acting in self-defense. W Put differently, if an issuer had to file 18 U.S.C. 1514A(a). 14 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 an 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 of the Commission's rules should not be adopted. It 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") . W 1 Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering §9.23 at 9-100. W 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). 15 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") . 16 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 to client explicitly referenced confidentiality in attorneys to use client defenses against their proceedings. Section the rules Commission's confidences clients, in in every comments litigating including state" entitle claims or whistleblower Indeed, the Commission emphasized the similarity of 205.3 (d) (1) to 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). 17 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) ~n (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 / W Indeed, to 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. . W 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 18 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"). t t t 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. 19 t Conduct Rules, there can be no 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 be construed as 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) is to be "effectively equivalent" to 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 in the SOX that allowing whistleblower attorney-client attorneys proceedings privilege is to 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 20 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. An "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, like the SEC, that is 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. fl fl ~ Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) ("we must defer to the [Commission's] interpretation unless 21 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/ B. EVEN IF FEDERAL COMMON LAw ApPLIED, SPRINT'S ARGUMENT Is 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]") . 22 reach this issue. As set forth above, the Commission's Part 205 rules express contain an provision of federal law explicitly authorizing the use of Part 205 reports and the responses thereto in SOX whistleblower proceedings. Nonetheless, because it the federal underscores common law may be the soundness ot 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 of that Circuit .n..! In decision that case, should be brought confined under the to the Fifth whistleblower I 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) 23 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" of reports containing client confidences ln 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. 24 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) . 25 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") . C. IN SOX WHISTLEBLOWER PROCEEDINGS, CLIENT CONFIDENCES SHOULD BE REVIEWED IN CAMERA AND PRODUCED SUBJECT TO ApPROPRIATE PROTECTIVE ORDERS. In 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. 26 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 to 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 to take appropriate ALJs are steps to safeguard the confidentiality of client confidences by, among other things, reviewing relevant documents in 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 of 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). 27 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 / By implementing whistleblower claim such by measures, an at least until attorney-whistleblower is a 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 is produced in civil discovery pursuant to a 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 W 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") . 28 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 a who strong may interest have in 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, we 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. 29 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 30 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 Copyright (c) 2009 by Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. *** 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 (C) wrongful execution orincarceration of another; . (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. (c) A lawyer must act competently to safeguard a client's confidences and secrets against 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""~ 1. U.J. .J. 1. VJ.""'.3.>JVJJUJ "",,V1.1.UU""''' tie"'" .1 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 All Rights Reserved. *** 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. (c) Neither this Rule nor Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of 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 Copyright (c) 1995-2009 by LEXIS Law Publishing, 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. (c) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to: (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 • .' ,..... ,.. ....... ....... . . . . . . ,..,. ... f ... " ',. .,.. " ...... ,," Page 1 LEXSTAT FLA. R. REGULATING THE BAR 4- 1.6 LexisNexis Florida Rules of Court Annotated Copyright 2009 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. *** 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. (c) When Lawyer May Reveal Information. --A lawyer may reveal such information to the extent the lawyer 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. (c) The lawyer may, where the law does not otherwise require, reveal information to which 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 (c) 2009 Matthew Bender & Company, a member ofthe LexisNexis Group. All rights reserved. *** 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. (c) A lawyer may reveal information relating to representation of a client to the extent the lawyer reasonably 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. (c) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably 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, 21 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 22 Page I I of I DOCUMENT Louisiana Court Rules Annotated Copyright (c) 2009'by Matthew Bender and Company, Inc., a member of the LexisNexis Group All rights reserved. *** 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 .·LexisNexis· 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. (c) A lawyer participating in a lawyer assistance program, as hereinafter defined, shall treat the person so assisted 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Asec%3A822236919e93df3e. Public record. Not legal advice.