Rule 1.6. CONFIDENTIALITY OF INFORMATION

CONFIDENTIALITY OF INFORMATION

(a)

A lawyer shall not reveal a confidence or secret of a client unless,

(i) the client gives informed consent; (ii) the lawyer reasonably believes that

disclosure is authorized in order to carry out the representation; or (iii) the

disclosure is permitted by paragraph (b).

(b)

A lawyer may reveal a confidence or secret of a client to the extent

the lawyer reasonably believes necessary:

(1) to prevent reasonably certain substantial bodily harm or death;

(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 professional obligations;

(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;

vice about the lawyer’s professional obligations;

(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;

(6) in connection with the sale of a law practice under Rule 1.17A or 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. In

those circumstances, a lawyer may disclose with respect to each affected

client the client’s identity, the identities of any adverse parties, the nature and

extent of the legal services involved, and fee and payment information, but

only if the information revealed would not compromise the attorney-client

privilege or otherwise prejudice any of the clients. The lawyer or lawyers

receiving the information shall have the same responsibilities as the

disclosing lawyer to preserve the information regardless of the outcome of the

contemplated transaction; or

(7) to comply with other law or a court order.

(c)

Before revealing information under paragraph (b) (1), (2), or (3),

the lawyer must, if feasible, make a good-faith effort to counsel the client to

prevent the harm and advise the client of the lawyer’s ability to reveal

information and the consequences thereof. Before revealing information

under paragraph (b)(5) or (6), in controversies in which the client is not a

complainant or a party, the lawyer must, if feasible, make a good faith effort to

provide the client with reasonable notice of the intended disclosure.

counsel the client to

prevent the harm and advise the client of the lawyer’s ability to reveal

information and the consequences thereof. Before revealing information

under paragraph (b)(5) or (6), in controversies in which the client is not a

complainant or a party, the lawyer must, if feasible, make a good faith effort to

provide the client with reasonable notice of the intended disclosure.

(d)

As used in Rule 1.6, “confidence” refers to information protected

by the attorney-client privilege under applicable law, and “secret” refers to

other information relating to the representation if there is a reasonable

prospect that revealing the information will adversely affect a material

interest of the client or if the client has instructed the lawyer not to reveal

such information.

COMMENT

[1]

Lawyers must be circumspect with respect to information learned

in the course of representing their clients. This Rule governs the disclosure by

a lawyer of confidences or 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 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 which is protected by the attorney-

client privilege or may be detrimental to the client’s interests. While the

Model Rule (2002) provides a broad formulation with respect to confidential

information, the Task Force chose to retain the more limited scope of

protection to matters protected by the attorney-client privilege and

he lawyer must not reveal

information relating to the representation which is protected by the attorney-

client privilege or may be detrimental to the client’s interests. While the

Model Rule (2002) provides a broad formulation with respect to confidential

information, the Task Force chose to retain the more limited scope of

protection to matters protected by the attorney-client privilege and

information gained in the relationship the disclosure of which may be

detrimental to the client’s interests. This was the approach taken under M.

Bar R. 3.6, the Model Code of Professional Responsibility, the RESTATEMENT

(THIRD) OF THE LAW GOVERNING LAWYERS, as well as other states which have

otherwise adopted the Model Rules of Professional Responsibility. 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. Based upon experience, lawyers know that almost all clients follow

the advice given, and the law is upheld. The Task Force determined that the

use of the term, “confidences and secrets,” as used in the Model Code, the

RESTATEMENT and M. Bar R. 3.6 is preferable to the broader formulation of

“information relating to the representation of the client.” The language of the

definition of “secrets,” derived from Section 60 of the RESTATEMENT, offers

lawyers the benefit of the law expressed and cited therein.

ask Force determined that the

use of the term, “confidences and secrets,” as used in the Model Code, the

RESTATEMENT and M. Bar R. 3.6 is preferable to the broader formulation of

“information relating to the representation of the client.” The language of the

definition of “secrets,” derived from Section 60 of the RESTATEMENT, offers

lawyers the benefit of the law expressed and cited therein.

[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,

which may be detrimental to the client’s interests. 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 confidences and

secrets of a client. The prohibition on disclosure 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.

ures 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

[5]

The

lawyer

may

disclose

information

relating

to

the

representation which he or she reasonably believes is necessary to carry out

the representation. This language is derived from Section 61 of the

RESTATEMENT OF THE LAW GOVERNING LAWYERS. In some situations, for example, a

lawyer may believe it is necessary 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.

Disclosure Adverse to Client

[6]

Although the public interest is usually best served by a strict rule

requiring lawyers to preserve the confidentiality of confidences and secrets of

clients’ 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 substantial

bodily harm or death. 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 substantial

bodily harm or death. 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. The requirement in M. Bar R. 3.6(h)(4)(l)

requiring that an act that is likely to result in death or bodily harm be a

criminal act has been eliminated. Rule 1.6(b)(1) also requires that the

potential harm be substantial. The elimination of the requirement of

criminality and the inclusion of the requirement of substantiality is consistent

with the approach taken in the 2002 Model Rules and the RESTATEMENT.

[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 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

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, 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. As noted in Comment

[6], this provision is a departure from recently amended M. Bar R. 3.6(h)(4),

which draws the permissive disclosure line at whether the client’s conduct is

“criminal,” and not at the nature and extent of the harm. At the time the

lawyer makes the decision as to whether he or she can or will disclose the

client’s act, it may be difficult to determine whether the client’s “fraud” rises

to the level of a crime. Accordingly, the Task Force deleted the categorical

limitation to crime and follows the Model Rule 1.6 (2002) inclusion of fraud,

so long as the harm could be substantial.

and extent of the harm. At the time the

lawyer makes the decision as to whether he or she can or will disclose the

client’s act, it may be difficult to determine whether the client’s “fraud” rises

to the level of a crime. Accordingly, the Task Force deleted the categorical

limitation to crime and follows the Model Rule 1.6 (2002) inclusion of fraud,

so long as the harm could be substantial.

[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. Paragraph (b)(3) does not apply when a person who has committed a

crime or fraud thereafter employs a lawyer for representation concerning that

offense.

[9]

A lawyer’s confidentiality obligations do not preclude a lawyer

from securing confidential legal advice about the lawyer’s professional

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)(4) permits such disclosure because of the

importance of a lawyer’s compliance with the Rules of Professional Conduct.

lawyer’s professional

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)(4) 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)(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] Lawyers may not use the threat of disclosure of confidences or

secrets out of spite or in order to obtain leverage against a client in a fee

dispute. A lawyer reasonably entitled to a fee is permitted by paragraph

ay

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] Lawyers may not use the threat of disclosure of confidences or

secrets out of spite or in order to obtain leverage against a client in a fee

dispute. A lawyer reasonably entitled to a fee is permitted by paragraph

(b)(5), however, 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 confidences or 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 the other law supersedes this Rule and

requires disclosure, paragraph (b) [(7)]1 permits the lawyer to make such

disclosures as are necessary to comply with the law. In situations in which

confidences and secrets may be revealed in connection with a controversy in

which the client is not a party, prior to disclosure, paragraph (c) requires the

1 Paragraph (b)(6) was renumbered to paragraph (7), effective September 1, 2015.

lawyer to make a good faith effort to provide notice to the client that a

confidence or secret under paragraph (b)(5) or [(7)] may be revealed.

s in which

confidences and secrets may be revealed in connection with a controversy in

which the client is not a party, prior to disclosure, paragraph (c) requires the

1 Paragraph (b)(6) was renumbered to paragraph (7), effective September 1, 2015.

lawyer to make a good faith effort to provide notice to the client that a

confidence or secret under paragraph (b)(5) or [(7)] may be revealed.

[13] A lawyer may be ordered to reveal confidences or secrets 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

non-frivolous 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.

[14] Paragraph (b) permits disclosure only to the extent the lawyer

reasonably believes the disclosure is necessary to accomplish one of the

purposes specified. Paragraph (c) requires that with respect to disclosures

under paragraphs (b)(1), (2) and (3), the lawyer must make a good faith

effort, if feasible, to counsel the client to prevent the harm and obviate the

need for disclosure. This requirement is consistent with Sections 66 and 67 of

the RESTATEMENT. 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

er paragraphs (b)(1), (2) and (3), the lawyer must make a good faith

effort, if feasible, to counsel the client to prevent the harm and obviate the

need for disclosure. This requirement is consistent with Sections 66 and 67 of

the RESTATEMENT. 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.

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

confidences or secrets to accomplish the purposes specified in paragraphs

(b)(1) through (b)[(7)]. 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).

s 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).

Acting Competently to Preserve Confidentiality

[16] A lawyer must 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. Consistent with Section 66 of the RESTATEMENT, a

lawyer who takes action or decides not to take action allowed under this Rule

is not, solely by reason of such action or inaction, subject to professional

discipline, liable for damages to the lawyer’s client or any third persons, or

barred from recovery against a client or third persons. The legal effect of the

lawyer’s choice, however, is beyond the scope of the Model Rules of

Professional Conduct.

[17] When transmitting a communication that includes confidences or

secrets 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

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

[18] 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.