Rule 1.6. Confidentiality of Information

(a) A lawyer shall not reveal a client’s confidence or

secret unless the client gives informed 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;

(B) substantial bodily harm; or

(C) wrongful execution or incarceration 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;

as 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) A lawyer must act competently to safeguard a client’s

confidences and secrets against unauthorized access, or against

inadvertent or unauthorized disclosure by the lawyer, by other

persons who are participating in the representation of the

client, by any other persons who are subject to the lawyer’s

supervision, or by others involved in transferring or storing

client confidences and secrets. This duty includes guarding

against unauthorized access to a client’s confidences and

secrets. See Rules 1.1, 5.1, and 5.3. A client may give

informed consent to forgo security measures that would

otherwise be required by this Rule. When transmitting or

storing information 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.

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 the language used in Model Rule 1.6 (“information”

relating to representation of a client) was excessively broad

utions to prevent

this information from coming into the hands of unintended

recipients.

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 the language used in Model Rule 1.6 (“information”

relating to representation of a client) was excessively broad.

The terms “confidence” and “secret” are defined in the

amended rule in substantively the same way as those terms

were defined in DR 4-101(A) of the ABA Model Code of

Professional Responsibility. The Committee expects that court

decisions interpreting “confidence” and “secret” under DR 4-

101(A) will be persuasive authority for interpreting the

amended Alaska rule.

The final sentence of paragraph (a) has been added to

require that a lawyer approach any decision about disclosing

confidences or secrets of a client from the standpoint that the

information is generally protected from disclosure.

In paragraph (b)(1)(C), the court included an additional

limited exception to the normal rule requiring lawyers to

preserve the confidences and secrets of their clients. This

provision is modeled on the similar Massachusetts rule; its

core purpose is to permit a lawyer to reveal confidential

information in the specific situation in which that information

discloses that an innocent person has been convicted of a crime

and has been sentenced to imprisonment or execution.

The lawyer’s decision to disclose information under this

rule is governed by objectively reasonable standards (see Rule

9.1(n) and (o)) and by all the facts and circumstances of which

the lawyer is aware or reasonably should be aware at the time

the decision is made.

Paragraph (c) is taken from the commentary to the ABA

version of the rules

d has been sentenced to imprisonment or execution.

The lawyer’s decision to disclose information under this

rule is governed by objectively reasonable standards (see Rule

9.1(n) and (o)) and by all the facts and circumstances of which

the lawyer is aware or reasonably should be aware at the time

the decision is made.

Paragraph (c) is taken from the commentary to the ABA

version of the rules. The Committee created paragraph (c)

because the Committee concluded that standards of pro-

fessional conduct subject to enforcement through disciplinary

proceedings should be stated in the text of the Rules rather

than in commentary.

COMMENT

This Rule governs the disclosure by a lawyer confidences

and secrets 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 confidences

and secrets 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 informa-

tion to the disadvantage of clients and former clients.

A fundamental principle in the client-lawyer relationship

is that, in the absence of the client’s informed consent, the

lawyer must not reveal a client’s confidences and secrets. See

Rule 9.1(g) 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

to ascertain what conduct is legal and correct

e 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

to ascertain what conduct is legal and correct.

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 the Rules of Professional Conduct. 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 also applies in situa-

tions 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 client secrets. A lawyer

may not disclose such information except as authorized or

required by the Rules of Professional Conduct or other law. A

determination that disclosure of client information is permitted

by the crime-fraud exception to the ethics rule does not

necessarily lead to the same result under the crime-fraud

exception to the attorney-client privilege. See also Scope.

Paragraph (a) prohibits a lawyer from revealing

confidences and secrets of a client. This prohibition also

applies to disclosures by a lawyer that do not in themselves

reveal protected information but could reasonably lead to the

discovery of such information by a third person. A lawyer’s

use of a hypothetical to discuss issues relating to the

representation is permissible so long as there is no reasonable

likelihood that the listener will be able to ascertain the identity

of the client or the situation involved

osures by a lawyer that do not in themselves

reveal protected information but could reasonably lead to the

discovery of such information by a third person. A lawyer’s

use of a hypothetical to discuss issues relating to the

representation is permissible so long as there is no reasonable

likelihood that the listener will be able to ascertain the identity

of the client or the situation involved.

Authorized Disclosure

Except to the extent that the client’s instructions or special

circumstances limit that authority, a lawyer is impliedly

authorized to make disclosures about a client when appropriate

in carrying out the representation. In some situations, for

example, a lawyer may be impliedly authorized to admit a fact

that cannot properly be disputed or to make a disclosure that

facilitates a satisfactory conclusion to a matter. Lawyers in a

firm may, in the course of the firm’s practice, disclose to each

other confidences and secrets of a client of the firm, unless the

client has instructed that particular information be confined to

specified lawyers.

Disclosure Adverse to Client

Although the public interest is usually best served by a

strict rule requiring lawyers to preserve the confidences and

secrets of their clients, the confidentiality rule is subject to

limited exceptions. Paragraph (b)(1) recognizes the overriding

value of life and physical integrity and permits disclosure

reasonably necessary to prevent reasonably certain death or

substantial bodily harm. Such harm is reasonably certain to

occur if it will be suffered imminently or if there is a present

and substantial threat that a person will suffer such harm at a

later date if the lawyer fails to take action necessary to

eliminate the threat

ding

value of life and physical integrity and permits disclosure

reasonably necessary to prevent reasonably certain death or

substantial bodily harm. Such harm is reasonably certain to

occur if it will be suffered imminently or if there is a present

and substantial threat that a person will suffer such harm at a

later date if the lawyer fails to take action necessary to

eliminate the threat. Thus, a lawyer who knows that a client

has accidentally discharged toxic waste into a town’s water

supply may reveal this information to the authorities if there is

a present and substantial risk that a person who drinks the

water will contract a life-threatening or debilitating disease and

the lawyer’s disclosure is necessary to eliminate the threat or

reduce the number of victims.

Paragraph (b)(2) is a limited exception to the rule of

confidentiality that permits the lawyer to reveal information to

the extent necessary to enable affected persons or appropriate

authorities to prevent the client from committing a crime or

fraud, as defined in Rule 1.0(d), that is reasonably certain to

result in substantial injury to the financial or property interests

of another and in furtherance of which the client has used or is

using the lawyer’s services. Such a serious abuse of the client-

lawyer relationship by the client forfeits the protection of this

Rule. The client can, of course, prevent such disclosure by

refraining from the wrongful conduct. Although paragraph

ly certain to

result in substantial injury to the financial or property interests

of another and in furtherance of which the client has used or is

using the lawyer’s services. Such a serious abuse of the client-

lawyer relationship by the client forfeits the protection of this

Rule. The client can, of course, prevent such disclosure by

refraining from the wrongful conduct. Although paragraph

(b)(2) does not require the lawyer to reveal the client’s

misconduct, the lawyer may not counsel or assist the client in

conduct the lawyer knows is criminal or fraudulent. See Rule

1.2(d). See also Rule 1.16 with respect to the lawyer’s

obligation or right to withdraw from the representation of the

client in such circumstances, and Rule 1.13(c), which permits

the lawyer, where the client is an organization, to reveal

information

relating

to

the

representation

in

limited

circumstances.

Paragraph (b)(3) addresses the situation in which the

lawyer does not learn of the client’s crime or fraud until after it

has been consummated. Although the client no longer has the

option of preventing disclosure by refraining from the

wrongful conduct, there will be situations in which the loss

suffered by the affected person can be prevented, rectified or

mitigated. In such situations, the lawyer may disclose client

confidences and secrets to the extent necessary to enable the

affected persons to prevent or mitigate reasonably certain

losses or to attempt to recoup their losses. Paragraph (b)(3)

does not apply when a person who has committed a crime or

fraud thereafter employs a lawyer for representation concern-

ing that offense.

A lawyer’s confidentiality obligations do not preclude a

lawyer from securing confidential legal advice about the

lawyer’s personal responsibility to comply with these Rules. In

most situations, disclosing information to secure such advice

will be impliedly authorized for the lawyer to carry out the

representation

raud thereafter employs a lawyer for representation concern-

ing that offense.

A lawyer’s confidentiality obligations do not preclude a

lawyer from securing confidential legal advice about the

lawyer’s personal responsibility to comply with these Rules. In

most situations, disclosing information to secure such advice

will be impliedly authorized for the lawyer to carry out the

representation. Even when the disclosure is not impliedly

authorized, paragraph (b)(2) permits such disclosure because

of the importance of a lawyer’s compliance with the Rules of

Professional Conduct. To the extent practicable, a lawyer

should use hypothetical facts when seeking this legal advice.

Where a legal claim or disciplinary charge alleges

complicity of the lawyer in a client’s conduct or other

misconduct of the lawyer involving representation of the

client, the lawyer may respond to the extent the lawyer

reasonably believes necessary to establish a defense. The same

is true with respect to a claim involving the conduct or

representation of a former client. Such a charge can arise in a

civil, criminal, disciplinary, or other proceeding and can be

based on a wrong allegedly committed by the lawyer against

the client or on a wrong alleged by a third person, for example,

a person claiming to have been defrauded by the lawyer and

client acting together. The lawyer’s right to respond arises

when an assertion of such complicity or other misconduct has

been made. Paragraph (b)(5) does not require the lawyer to

await the commencement of an action or proceeding that

charges misconduct, so the defense may be established by

responding directly to a third party who has made such an

assertion. The right to defend also applies, of course, when a

proceeding has been commenced.

A lawyer entitled to a fee is permitted by paragraph (b)(5)

to prove the services rendered in an action to collect it

e lawyer to

await the commencement of an action or proceeding that

charges misconduct, so the defense may be established by

responding directly to a third party who has made such an

assertion. The right to defend also applies, of course, when a

proceeding has been commenced.

A lawyer entitled to a fee is permitted by paragraph (b)(5)

to prove the services rendered in an action to collect it. This

aspect of the rule expresses the principle that the beneficiary of

a fiduciary relationship may not exploit it to the detriment of

the fiduciary.

Other law may require that a lawyer disclose information

about a client. Whether such a law supersedes Rule 1.6 is a

question of law beyond the scope of these Rules. When

disclosure of confidences and secrets appears to be required by

other law, the lawyer must discuss the matter with the client to

the extent required by Rule 1.4. If, however, the other law

supersedes this Rule and requires disclosure, paragraph (b)(6)

permits the lawyer to make such disclosures as are necessary to

comply with the law.

A lawyer may be ordered to reveal confidences and

secrets of a client by a court or by another tribunal or

governmental entity claiming authority pursuant to other law to

compel the disclosure. Absent informed consent of the client to

do otherwise, the lawyer should assert on behalf of the client

all nonfrivolous claims that the order is not authorized by other

law or that the information sought is protected against

disclosure by the attorney-client privilege or other applicable

law. In the event of an adverse ruling, the lawyer must consult

with the client about the possibility of appeal to the extent

required by Rule 1.4. Unless review is sought, however,

paragraph (b)(6) permits the lawyer to comply with the court’s

order.

Paragraph (b) permits disclosure only to the extent the

lawyer reasonably believes the disclosure is necessary to

accomplish one of the purposes specified

vent of an adverse ruling, the lawyer must consult

with the client about the possibility of appeal to the extent

required by Rule 1.4. Unless review is sought, however,

paragraph (b)(6) permits the lawyer to comply with the court’s

order.

Paragraph (b) permits disclosure only to the extent the

lawyer reasonably believes the disclosure is necessary to

accomplish one of the purposes specified. Where practicable,

the lawyer should first seek to persuade the client to take

suitable action to obviate the need for disclosure. In any case, a

disclosure adverse to the client’s interest should be no greater

than the lawyer reasonably believes necessary to accomplish

the purpose. If the disclosure will be made in connection with a

judicial proceeding, the lawyer should ask the tribunal to limit

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.

Detection of Conflicts of Interest

This Rule recognizes that lawyers in different firms may

need to disclose limited information to each other to detect and

resolve conflicts of interest, such as when a lawyer is

considering an association with another firm, two or more

firms are considering a merger, or a lawyer is considering the

purchase of a law practice. See Rule 1.17. Under these

circumstances, lawyers and law firms are permitted to disclose

limited information, but only once substantive discussions

regarding the new relationship have occurred. Any such

disclosure should ordinarily include no more than the identity

of the persons and entities involved in a matter, a brief

summary of the general issues involved, and information about

whether the matter has terminated. Even this limited

information, however, should be disclosed only to the extent

reasonably necessary to detect and resolve conflicts of interest

that might arise from the possible new relationship

rdinarily include no more than the identity

of the persons and entities involved in a matter, a brief

summary of the general issues involved, and information about

whether the matter has terminated. Even this limited

information, however, should be disclosed only to the extent

reasonably necessary to detect and resolve conflicts of interest

that might arise from the possible new relationship. Moreover,

the disclosure of any information is prohibited if it would

compromise the attorney-client privilege or otherwise

prejudice the client (e.g., the fact that a corporate client is

seeking advice on a corporate takeover that has not been

publicly announced; that a person has consulted a lawyer about

the possibility of divorce before the person’s intentions are

known to the person’s spouse; or that a person has consulted a

lawyer about a criminal investigation that has not led to a

public charge). Under those circumstances, paragraph (a)

prohibits disclosure unless the client or former client gives

informed consent. A lawyer’s fiduciary duty to the lawyer’s

firm may also govern a lawyer’s conduct when exploring an

association with another firm and is beyond the scope of these

Rules.

Any information disclosed pursuant to this Rule may be

used or further disclosed only to the extent necessary to detect

and resolve conflicts of interest. This Rule does not restrict the

use of information acquired by means independent of any

disclosure pursuant to this Rule. This Rule also does not affect

the disclosure of information within a law firm when the

disclosure is otherwise authorized, such as when a lawyer in a

firm discloses information to another lawyer in the same firm

to detect and resolve conflicts of interest that could arise in

connection with undertaking a new representation

quired by means independent of any

disclosure pursuant to this Rule. This Rule also does not affect

the disclosure of information within a law firm when the

disclosure is otherwise authorized, such as when a lawyer in a

firm discloses information to another lawyer in the same firm

to detect and resolve conflicts of interest that could arise in

connection with undertaking a new representation.

Disclosures Otherwise Required or Authorized

Paragraph (b) permits but does not require the disclosure

of confidences and secrets of a client to accomplish the

purposes specified in paragraphs (b)(1) through (b)(6). In

exercising the discretion conferred by this Rule, the lawyer

may consider such factors as the nature of the lawyer’s

relationship with the client and with those who might be

injured by the client, the lawyer’s own involvement in the

transaction and factors that may extenuate the conduct in

question. A lawyer’s decision not to disclose as permitted by

paragraph (b) does not violate this Rule. Disclosure may be

required, however, by other Rules. Some Rules require

disclosure only if such disclosure would be permitted by

paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3,

on the other hand, requires disclosure in some circumstances

regardless of whether such disclosure is permitted by this Rule.

See Rule 3.3(c).

In various circumstances, a lawyer is permitted or

required to disclose client confidences and secrets. See, for

example, Rules 2.3, 3.3, and 4.1. In addition to these

provisions, a lawyer may be obligated or permitted by other

provisions of law to give information about a client. Whether

another provision of law supersedes or augments Rule 1.6 is a

matter of interpretation beyond the scope of these Rules.

The attorney-client privilege is defined differently in

various jurisdictions

secrets. See, for

example, Rules 2.3, 3.3, and 4.1. In addition to these

provisions, a lawyer may be obligated or permitted by other

provisions of law to give information about a client. Whether

another provision of law supersedes or augments Rule 1.6 is a

matter of interpretation beyond the scope of these Rules.

The attorney-client privilege is defined differently in

various jurisdictions. If a lawyer is called as a witness to give

testimony concerning a client, absent waiver by the client,

paragraph (a) requires the lawyer to invoke the privilege when

it is applicable. The lawyer must comply with the final orders

of a court or other tribunal of competent jurisdiction requiring

the lawyer to give information about the client.

Acting Competently to Preserve Confidentiality

Paragraph (c) requires a lawyer to act competently to

safeguard client confidences and secrets against unauthorized

access by third parties and against inadvertent or unauthorized

disclosure by the lawyer or other persons who are participating

in the representation of the client or who are subject to the

lawyer’s supervision. See Rules 1.1, 5.1, 5.3. The unauthorized

access to, or the inadvertent or unauthorized disclosure of,

information relating to the representation of a client does not

constitute a violation of paragraph (c) if the lawyer has made

reasonable efforts to prevent the access or disclosure. Factors

to be considered in determining the reasonableness of the

lawyer’s efforts include, but are not limited to, the sensitivity

of the information, the likelihood of disclosure if additional

safeguards are not employed, the cost of employing additional

safeguards, the difficulty of implementing the safeguards, and

the extent to which the safeguards adversely affect the

lawyer’s ability to represent clients (e.g., by making a device

or important piece of software excessively difficult to use)

mited to, the sensitivity

of the information, the likelihood of disclosure if additional

safeguards are not employed, the cost of employing additional

safeguards, the difficulty of implementing the safeguards, and

the extent to which the safeguards adversely affect the

lawyer’s ability to represent clients (e.g., by making a device

or important piece of software excessively difficult to use).

The duty of safeguarding communications described in Rule

1.6(c) does not require that the lawyer use special security

measures if the method of communication affords a reasonable

expectation of privacy. Special circumstances, however, may

warrant special precautions. Factors to be considered in

determining the reasonableness of the lawyer’s expectation of

confidentiality include the sensitivity of the information and

the extent to which the privacy of the communication is

protected by law or by a confidentiality agreement. A client

may require the lawyer to implement special security measures

not required by this Rule or may give informed consent to the

use of a means of communication that would otherwise be

prohibited by this Rule. Whether a lawyer may be required to

take additional steps in order to comply with other law, such as

state and federal laws that govern data privacy, is beyond the

scope of these Rules.

Withdrawal

If the lawyer’s services will be used by the client in

materially furthering a course of criminal or fraudulent

conduct, the lawyer must withdraw, as stated in Rule

1.16(a)(1). After withdrawal the lawyer is required to refrain

from making disclosure of the client’s confidences and secrets,

except as otherwise permitted by Rule 1.6. 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

ated in Rule

1.16(a)(1). After withdrawal the lawyer is required to refrain

from making disclosure of the client’s confidences and secrets,

except as otherwise permitted by Rule 1.6. 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. Where the client is an organization, the lawyer may

be in doubt whether contemplated conduct will actually be

carried out by the organization. Where necessary to guide

conduct in connection with this Rule, the lawyer may make

inquiry within the organization as indicated in Rule 1.13(b).

The duty of safeguarding communications described in

Rule 1.6(c) does not require that the lawyer use special

security measures if the method of communication affords a

reasonable expectation of privacy. Special circumstances,

however, may warrant special precautions. Factors to be

considered in determining the reasonableness of the lawyer’s

expectation of confidentiality include the sensitivity of the

information and the extent to which the privacy of the

communication is protected by law or by a confidentiality

agreement. A client may require the lawyer to implement

special security measures not required by this Rule or may give

informed consent to the use of a means of communication that

would otherwise be prohibited by this Rule.

Former Client

The duty of confidentiality continues after the client-

lawyer relationship has terminated. See Rule 1.9(c)(2). See

Rule 1.9(c)(1) for the prohibition against using confidences

and secrets to the disadvantage of a former client.

LAW REVIEW COMMENTARIES

“Guilty But Mentally Ill: The Ethical Dilemma of Mental Illness as a Tool

of the Prosecution,” 32 Alaska L. Rev. 1 (2015).