Rule 1.6. Confidentiality of Information

Alabama Rules of Professional Conduct

Client-Lawyer Relationship

Rule 1.6.

Confidentiality of Information.

(a)

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

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

authorized in order to carry out the representation, and except as stated in paragraph

(b).

(b)

A lawyer may reveal such information to the extent the lawyer reasonably

believes necessary:

(1)

To prevent the client from committing a criminal act that the lawyer

believes is likely to result 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.

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.

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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.

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.

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.

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

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.

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.

When coverage is or may be disputed, a lawyer representing an insured

pursuant to an insurance contract may disclose any information pertinent to the issue

of coverage to the insurer as well as to the insured. Although the insurer in such a

situation is not the appointed attorney's client, as opposed to the situation in a normal

insurance defense relationship, such disclosure is impliedly authorized in order to

carry out the representation. However, the lawyer should avoid disclosing information

to the insurer that the lawyer knows would adversely affect insurance coverage for the

insured, unless either such disclosure is approved by the insured or the lawyer has

assurances that the insurer will not use the information to the insured's disadvantage.

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.

ed, unless either such disclosure is approved by the insured or the lawyer has

assurances that the insurer will not use the information to the insured's disadvantage.

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 which would enable

to lawyer to counsel against a wrongful course of action. The public is better protected

if full and open communication by the client is encouraged than if it is inhibited.

Several situations must be distinguished.

First, the lawyer may not counsel or 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)(3) not to

use false evidence. This duty is essentially a special instance of the duty prescribed

in Rule 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. In such a situation the lawyer has not violated

Rule 1.2(d), because to “counsel or assist” criminal or fraudulent conduct requires

knowing that the conduct is of that character.

Third, the lawyer may learn that a client intends prospective conduct that is

criminal and likely to result in imminent death or substantial bodily harm. As stated in

paragraph (b)(1), the lawyer has professional discretion to reveal information in order

to prevent such consequences

to “counsel or assist” criminal or fraudulent conduct requires

knowing that the conduct is of that character.

Third, the lawyer may learn that a client intends prospective conduct that is

criminal and likely to result in imminent death or substantial bodily harm. As stated in

paragraph (b)(1), the lawyer has professional discretion to reveal information in order

to prevent such consequences. The lawyer may make a disclosure in order to prevent

homicide or serious bodily injury which the lawyer reasonably believes is intended by

a client. It is very difficult for a lawyer to “know” when such a heinous purpose will

actually be carried out, for the client may have a change of mind.

The lawyer's exercise of discretion requires consideration of 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. Where practical, the lawyer should seek to

persuade the client to take suitable action. In any case, a disclosure adverse to the

client's interest should be no greater than the lawyer reasonably believes necessary

to the purpose. A lawyer's decision not to take preventive action permitted by

paragraph (b)(1) does not violate this Rule.

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).

interest should be no greater than the lawyer reasonably believes necessary

to the purpose. A lawyer's decision not to take preventive action permitted by

paragraph (b)(1) does not violate this Rule.

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, except as otherwise provided in 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).

Dispute Concerning Lawyer's Conduct

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. The lawyer's right to respond arises when an

assertion of such complicity has been made. Paragraph (b)(2) does not require the

lawyer to await the commencement of an action or proceeding that charges such

complicity, so that the defense may be established by responding directly to a third

party who has made such an assertion. The right to defend, of course, applies where

a proceeding has been commenced

's right to respond arises when an

assertion of such complicity has been made. Paragraph (b)(2) does not require the

lawyer to await the commencement of an action or proceeding that charges such

complicity, so that the defense may be established by responding directly to a third

party who has made such an assertion. The right to defend, of course, applies where

a proceeding has been commenced. Where practicable and not prejudicial to the

lawyer's ability to establish the defense, the lawyer should advise the client of the third

party's assertion and request that the client respond appropriately. In any event,

disclosure should be no greater than the lawyer reasonably believes is necessary to

vindicate innocence, the disclosure should be made in a manner which 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.

If the lawyer is charged with wrongdoing in which the client's conduct is

implicated, the rule of confidentiality should not prevent the lawyer from defending

against the charge. Such a charge can arise in a civil, criminal or professional

disciplinary 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. A

lawyer entitled to a fee is permitted by paragraph (b)(2) 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.

As stated above, the lawyer must make every effort practicable to avoid unnecessary

disclosure of information relating to a representation, to limit disclosure to those having

ph (b)(2) 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.

As stated above, the lawyer must make every effort practicable to avoid unnecessary

disclosure of information relating to a representation, to limit disclosure to those having

the need to know it, and to obtain protective orders or make other arrangements

minimizing the risk of disclosure.

Disclosures Otherwise Required or Authorized

The attorney-client privilege is differently defined 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.

The Rules of Professional Conduct in various circumstances permit or require

a lawyer to disclose information relating to the representation. See Rules 2.2, 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 Rule 1.6 is a matter of interpretation beyond the scope of these

Rules, but a presumption should exist against such a supersession.

Former Client

The duty of confidentiality continues after the client-lawyer relationship has

terminated

isions, a lawyer may be obligated or permitted by

other provisions of law to give information about a client. Whether another provision

of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these

Rules, but a presumption should exist against such a supersession.

Former Client

The duty of confidentiality continues after the client-lawyer relationship has

terminated.

Comparison with Former Alabama Code of Professional Responsibility

Rule 1.6 eliminates the two-pronged duty under the former Code in favor of a

single standard protecting all information about a client “relating to representation.”

Under DR 4-101, the requirement applied to information protected by the attorney-

client privilege and to information “gained in” the professional relationship that “the

client has requested be held inviolate or the disclosure of which would be

embarrassing or would be likely to be detrimental to the client.” EC 4-4 added that the

duty differed from the evidentiary privilege in that it existed “without regard to the

nature or source of information or the fact that others share the knowledge.” Rule 1.6

imposes confidentiality on information relating to the representation even if it is

acquired before or after the relationship existed. It does not require the client to

indicate information that is to be confidential, or permit the lawyer to speculate whether

particular information might be embarrassing or detrimental.

Paragraph (a) permits a lawyer to disclose information where impliedly

authorized to do so in order to carry out the representation.

Paragraph (b) redefines the exceptions to the requirement of confidentiality.

Regarding paragraph (b)(1), DR 4-101(C)(5) provided that a lawyer “may reveal [t]he

it the lawyer to speculate whether

particular information might be embarrassing or detrimental.

Paragraph (a) permits a lawyer to disclose information where impliedly

authorized to do so in order to carry out the representation.

Paragraph (b) redefines the exceptions to the requirement of confidentiality.

Regarding paragraph (b)(1), DR 4-101(C)(5) provided that a lawyer “may reveal [t]he

intention of his client to commit a crime and the information necessary to prevent the

crime.” This option existed regardless of the seriousness of the proposed crime.

With regard to paragraph (b)(2), DR 4-101(C)(4) provided that a lawyer may

reveal “[c]onfidences or secrets necessary to establish or collect his fee or to defend

himself or his employers or associates against an accusation of wrongful conduct.”

Paragraph (b)(2) enlarges the exception to include disclosure of information relating

to claims by the lawyer other than for the lawyer's fee, for example, recovery of

property from the client.