Rule 1.6. Confidentiality of Information

Confidentiality of Information

(a) A lawyer shall not reveal information relating

to representation of a client unless the client gives

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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 committing 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 consequence

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.

(5) Detect and resolve conflicts of interest arising from the lawyer’s change of employment or

from changes in the composition or ownership of

a firm, but only if the revealed information would

not compromise the attorney-client privilege or

otherwise prejudice the client.

(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.

ejudice the client.

(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.

(e) A lawyer shall make reasonable efforts to

prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information

relating to the representation of a client.

COMMENTARY: This Rule governs the disclosure by a

lawyer of information relating to the representation of a client

during the lawyer’s representation of the client. See Rule 1.18

for the lawyer’s duties with respect to information provided to

the lawyer by a prospective client, Rule 1.9 (c) (2) for the

lawyer’s duty not to reveal information relating to the lawyer’s

prior representation of a former client and Rules 1.8 (b) and

1.9 (c) (1) for the lawyer’s duties with respect to the use of such

information to the disadvantage of clients and former clients.

A fundamental principle in the client-lawyer relationship is

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

must not reveal information relating to the representation. See

Rule 1.0 (f) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal

assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client

ating to the representation. See

Rule 1.0 (f) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal

assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client

Rule 1.6

effectively and, if necessary, to advise the client to refrain from

wrongful conduct. Almost without exception, clients come to

lawyers in order to determine their rights and what is, in the

complex of laws and regulations, deemed to be legal and

correct. Based upon experience, lawyers know that almost all

clients follow the advice given, and the law is upheld.

The principle of client-lawyer confidentiality is given effect

by related bodies of law, the attorney-client privilege, the work

product doctrine and the Rule of confidentiality established

in professional ethics. The attorney-client 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.

Subsection (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

on

except as authorized or required by the Rules of Professional

Conduct or other law. See also Scope.

Subsection (a) prohibits a lawyer from revealing information

relating to the representation of a client. This prohibition also

applies to disclosures by a lawyer that do not in themselves

reveal protected information but could reasonably lead to the

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

use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of

the client or the situation involved.

Authorized Disclosure. Except to the extent that the client’s instructions or special circumstances limit that authority,

a lawyer is impliedly authorized to make disclosures about a

client when appropriate in carrying out the representation.

In some situations, for example, a lawyer may be impliedly

authorized to admit a fact that cannot properly be disputed 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 information relating to a client

of the firm, unless the client has instructed that particular

information be confined to specific lawyers.

Disclosure Adverse to Client. Although the public interest

is usually best served by a strict rule requiring lawyers to

preserve the confidentiality of information relating to the representation of their clients, the confidentiality Rule is subject to

limited exceptions. Subsection (b) recognizes the overriding

value of life and physical integrity and requires disclosure in

certain circumstances

.

Disclosure Adverse to Client. Although the public interest

is usually best served by a strict rule requiring lawyers to

preserve the confidentiality of information relating to the representation of their clients, the confidentiality Rule is subject to

limited exceptions. Subsection (b) recognizes the overriding

value of life and physical integrity and requires disclosure in

certain circumstances.

Subsection (c) (1) 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 (e), that is likely to result in

substantial injury to the financial or property interests of

another. 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 subsection (c) (1) 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.

Subsection (c) (2) addresses the situation in which the

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

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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

n limited circumstances.

Subsection (c) (2) addresses the situation in which the

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

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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 information relating to the representation to the extent necessary to

enable the affected persons to prevent or mitigate reasonably

certain losses or to attempt to recoup their losses. Subsection

(c) (2) does not apply when a person who has committed a

crime or fraud thereafter employs a lawyer for representation

concerning 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,

subsection (c) (3) permits such disclosure because of the

importance of a lawyer’s compliance with the Rules of Professional Conduct. The lawyer’s right to disclose such information

to a second lawyer pursuant to subsection (c) (3) does not

give the second lawyer the duty or right to disclose such

information under subsections (b), (c) and (d). The first lawyer’s client does not become the client of the second lawyer

just because the first lawyer seeks the second lawyer’s advice

under (c) (3).

Subsection (c) (5) 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, commentary

second lawyer’s advice

under (c) (3).

Subsection (c) (5) 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, commentary. 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. 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 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, subsection (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 subsection (c) (5) may be used or further

disclosed only to the extent necessary to detect and resolve

conflicts of interest

sclosure 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 subsection (c) (5) may be used or further

disclosed only to the extent necessary to detect and resolve

conflicts of interest. Subsection (c) (5) does not restrict the

use of information acquired by means independent of any

disclosure pursuant to subsection (c) (5). Subsection (c) (5)

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.

Where a legal claim or disciplinary charge alleges complicity

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

Rule 1.6

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 has been made. Subsection (d) 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 also applies, of

course, where a proceeding has been commenced

er’s right to respond arises when an assertion of such

complicity has been made. Subsection (d) 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 also applies, of

course, where a proceeding has been commenced.

A lawyer entitled to a fee is permitted by subsection (d) 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 information relating to the representation 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,

subsection (c) (4) permits the lawyer to make such disclosures

as are necessary to comply with the law.

A lawyer may be ordered to reveal information relating to

the representation 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, subsection (c) (4) permits the lawyer to comply with the court’s

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, subsection (c) (4) permits the lawyer to comply with the court’s

order.

Subsection (b) requires and subsection (c) 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 disclosure should be made in a 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.

Subsection (c) permits but does not require the disclosure

of information relating to a client’s representation to accomplish the purposes specified in subsections (c) (1) through (c)

(4). 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 subsection

sections (c) (1) through (c)

(4). 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 subsection

(c) does not violate this Rule. Disclosure may be required,

however, by other Rules. Some Rules require disclosure only

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if such disclosure would be permitted by subsection (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).

Acting Competently To Preserve Confidentiality. Subsection (e) requires a lawyer to act competently to safeguard

information relating to the representation of a client 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 and 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 subsection (e) 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)

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). A client may require the lawyer to implement special security measures not required by this Rule or

may give informed consent to forgo security measures that

would otherwise be required by this Rule. Whether a lawyer

may be required to take additional steps to safeguard a client’s

information in order to comply with other law, such as state and

federal laws that govern data privacy or that impose notification

requirements upon the loss of, or unauthorized access to,

electronic information, is beyond the scope of these Rules. For

a lawyer’s duties when sharing information with nonlawyers

outside the lawyer’s own firm, see Rule 5.3, commentary.

When transmitting a communication that includes information relating to the representation of a client, the lawyer must

take reasonable precautions to prevent the information from

coming into the hands of unintended recipients. This duty,

however, 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

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.

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 such

information to the disadvantage of the former client.