Rule 1.6. Confidentiality of information

« Rule 1.6. »

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

reasonably certain to result in substantial injury to the financial interests

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

using the lawyer’s services;

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

interests or property of another that is reasonably certain to result or has

resulted from the client’s commission of a crime or fraud in furtherance of

which the client has used the lawyer’s services;

(4) to secure legal advice about the lawyer’s compliance with these

Rules;

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

controversy between the lawyer and the client, to establish a defense to a

criminal charge or civil claim against the lawyer based upon conduct in

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

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

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

(7) to 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.

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

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

(7) to 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.

(c) 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. (Amended, effective Mar. 1, 2013.)

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 and what is, in the complex of laws and regulations, deemed to be

legal and correct

ankly 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 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 reasonable

likelihood that the listener will be able to ascertain the identity of the client

or the situation involved.

[5] Authorized disclosure

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.

[5] 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 information relating to a client of the firm, unless

the client has instructed that particular information be confined to

specified lawyers.

[6] 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. 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

riding 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.

[7] 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 a 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 (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.

Where the client is an organization, the lawyer may be in doubt whether

contemplated conduct will actually be carried out by the organization

yer 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.

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).

[8] 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 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. Disclosure is not permitted under paragraph (b)(3) when a

person who has committed a crime or fraud thereafter employs a lawyer

for representation concerning that offense if that lawyer’s services were

not used in the initial crime or fraud; disclosure would be permitted,

however, if the lawyer’s services are used to commit a further crime or

fraud, such as the crime of obstructing justice. While applicable law may

provide that a completed act is regarded for some purposes as a continuing

offense, if commission of the initial act has already occurred without the

use of the lawyer’s services, the lawyer does not have discretion under this

paragraph to use or disclose the client’s information.

are used to commit a further crime or

fraud, such as the crime of obstructing justice. While applicable law may

provide that a completed act is regarded for some purposes as a continuing

offense, if commission of the initial act has already occurred without the

use of the lawyer’s services, the lawyer does not have discretion under this

paragraph to use or disclose the client’s information.

[9] 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.

[10] 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 has been made. Paragraph (b)

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. Paragraph (b)

(5) 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.

[11] 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.

[12] 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, paragraph (b)

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, paragraph (b)

(6) permits the lawyer to make such disclosures as are necessary to comply

with the law. See, e.g., 29 DEL. CODE ANN. § 9007A(c) (which

provides that an attorney acting as guardian ad litem for a child in child

welfare proceedings shall have the “duty of confidentiality to the child

unless the disclosure is necessary to protect the child’s best interests”).

[13] Paragraph (b)(6) also permits compliance with a court order

requiring a lawyer to disclose information relating to a client’s

representation. If a lawyer is called as a witness to give testimony

concerning a client or is otherwise ordered to reveal information relating

to the client’s representation, however, the lawyer must, absent informed

consent of the client to do otherwise, assert on behalf of the client all

nonfrivolous claims 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.

[14] Paragraph (b)(7) 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, Comment [7]

mply with

the court’s order.

[14] Paragraph (b)(7) 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, Comment [7].

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 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)

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.

[15] Any information disclosed pursuant to paragraph (b)(7) may be

used or further disclosed only to the extent necessary to detect and resolve

conflicts of interest. Paragraph (b)(7) does not restrict the use of

information acquired by means independent of any disclosure pursuant to

paragraph (b)(7). Paragraph (b)(7) also does not affect the disclosure of

information within a law firm when the disclosure is otherwise authorized,

see Comment [5], 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.

[16] 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

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.

[17] Paragraph (b) permits but does not require the disclosure of

information relating to a client’s representation 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

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).

[18] Acting competently to preserve confidentiality. — Paragraph (c)

requires a lawyer to act competently to safeguard information relating to

the representation of a client 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 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 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). A client may require the lawyer to implement special security

measures not required by this Rule or it may give informed consent to

forgo security measures that would otherwise be required by this Rule

guards, 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 it 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, Comments [3]-[4].

[19] 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

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.

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.

[20] 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.

NOTES TO DECISIONS

Confidentiality.

Conflicts of interest.

Confidentiality.

Analysis

Attorney’s disclosure of a codefendant’s statement to the attorney’s client

charged with murder and related offenses, after the attorney retrieved it

from the codefendant’s file, violated the codefendant’s attorney-client

privilege; the disclosure constituted a violation of the professional conduct

rules relating to the confidentiality of information and conduct that was

prejudicial to the administration of justice. In re Lyle, 74 A.3d 654 (Del.

2013)

orney’s client

charged with murder and related offenses, after the attorney retrieved it

from the codefendant’s file, violated the codefendant’s attorney-client

privilege; the disclosure constituted a violation of the professional conduct

rules relating to the confidentiality of information and conduct that was

prejudicial to the administration of justice. In re Lyle, 74 A.3d 654 (Del.

2013).

Although the plaintiff’s counsel should not have given the plaintiff a

juror’s phone number after trial, sanctions were not imposed on counsel

because no convincing evidence showed that counsel suggested that

plaintiff contact the juror; plaintiff was not sanctioned because no

authority barred plaintiff from contacting the juror. Baird v. Owczarek,

2013 Del. Super. LEXIS 377 (Del. Super. Ct. Aug. 29, 2013), rev’d, 93

A.3d 1222 (Del. 2014).

There was no bona fide condition for the court’s recusal limited to the

issue of counsel’s withdrawal, because counsel could strictly limit

disclosures to the court to preserve the client’s confidentiality pursuant to

counsel’s professional conduct obligations. State v. Pardo, 2015 Del. Super.

LEXIS 548 (Del. Super. Ct. Oct. 27, 2015).

Conflicts of interest.

Because the defendant did not object to a law firm’s representation of

the plaintiff during the negotiations of a merger agreement, and failed to

point to information or confidences obtained by the firm in its prior work

for the defendant that would have a material influence on the proceedings,

there was no basis to disqualify the firm. Rohm & Haas Co. v. Dow Chem.

Co., 2009 Del. Ch. LEXIS 249 (Del. Ch. Feb. 12, 2009).

Del. Rules of Prof'l Conduct Rule 1.7