Rule 1.6. CONFIDENTIALITY OF INFORMATION

(a)

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

client, including information protected by the attorney-client privilege under applicable

law, unless the client gives informed consent, the disclosure is impliedly authorized in

order to carry out the representation, or the disclosure is permitted by division (b) or

required by division (d) of this rule.

(b)

A lawyer may reveal information relating to the representation of a client,

including information protected by the attorney-client privilege under applicable law, to

the extent the lawyer reasonably believes necessary for any of the following purposes:

(1)

to prevent reasonably certain death or substantial bodily harm;

(2)

to prevent the commission of a crime by the client or other person;

(3)

to mitigate substantial injury to the financial interests or property of

another that has resulted from the client’s commission of an illegal or fraudulent

act, 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, including any disciplinary

matter, concerning the lawyer’s representation of the client;

(6)

to comply with other law or a court order;

(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 related to the

representation of a client.

awyer’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 related to the

representation of a client.

(d)

A lawyer shall reveal information relating to the representation of a client,

including information protected by the attorney-client privilege under applicable law, to

the extent the lawyer reasonably believes necessary to comply with Rule 3.3 or 4.1.

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(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 effectively and,

if necessary, to advise the client to refrain from wrongful conduct

s 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.

[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 Ohio Rules of

Professional Conduct or other law. See also Scope.

[4]

Division (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.

osures by a lawyer that do not in

themselves reveal protected information but could reasonably lead to the discovery of such

information by a third person. A lawyer’s use of a hypothetical to discuss issues relating to the

representation is permissible so long as there is no reasonable likelihood that the listener will be

able to ascertain the identity of the client or the situation involved.

Authorized Disclosure

[5]

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.

Disclosure Adverse to Client

[6]

Permitting lawyers to reveal information relating to the representation of clients

may create a chilling effect on the client-lawyer relationship, and discourage clients from revealing

confidential information to their lawyers at a time when the clients should be making a full

disclosure. 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. Division (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

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. Division (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. Thus,

a lawyer who knows that a client has 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]

Division (b)(2) recognizes the traditional “future crime” exception, which permits

lawyers to reveal the information necessary to prevent the commission of the crime by a client or

a third party.

[8]

Division (b)(3) addresses the situation in which the lawyer does not learn of the

illegal or fraudulent act of a client until after the client has used the lawyer’s services to further it.

Although the client no longer has the option of preventing disclosure by refraining from the

wrongful conduct [see Rule 4.1], there will be situations in which the loss suffered by the affected

person can be mitigated. In such situations, the lawyer may disclose information relating to the

representation to the extent necessary to enable the affected persons to mitigate or recoup their

losses. Division (b)(3) does not apply when a person is accused of or has committed an illegal or

fraudulent act and thereafter employs a lawyer for representation concerning that conduct

the affected

person can be mitigated. In such situations, the lawyer may disclose information relating to the

representation to the extent necessary to enable the affected persons to mitigate or recoup their

losses. Division (b)(3) does not apply when a person is accused of or has committed an illegal or

fraudulent act and thereafter employs a lawyer for representation concerning that conduct. In

addition, division (b)(3) does not apply to a lawyer who has been engaged by an organizational

client to investigate an alleged violation of law by the client or a constituent of the client.

[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,

division (b)(4) permits such disclosure because of the importance of a lawyer’s compliance with

the Ohio Rules of Professional Conduct.

[10]

Where a legal claim or disciplinary charge alleges complicity of the lawyer in the

conduct of a client or a former client or other misconduct of the lawyer involving representation

of the client or a former client, the lawyer may respond to the extent the lawyer reasonably believes

necessary to establish a defense. 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

ieves

necessary to establish a defense. 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. Division (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 division (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, division (b)(6) permits the lawyer to make

such disclosures as are necessary to comply with the law.

Detection of Conflicts of Interest

hen

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, division (b)(6) permits the lawyer to make

such disclosures as are necessary to comply with the law.

Detection of Conflicts of Interest

[13]

Division (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 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 a 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, division (a) prohibits disclosure unless the client or former

client gives informed consent

as not been publicly announced; that a person has consulted a lawyer

about the possibility of a 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, division (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.

[14]

Any information disclosed pursuant to division (b)(7) may be used or further

disclosed only to the extent necessary to detect and resolve conflicts of interest. Division (b)(7)

does not restrict the use of information acquired by means independent of any disclosure pursuant

to division (b)(7). Division (b)(7) 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. See Comment [5].

[15]

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, division (b)(6) permits the lawyer to comply with the court’s order.

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, division (b)(6) permits the lawyer to comply with the court’s order.

[16]

Division (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. 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. Before making a disclosure under division (b)(1), (2), or (3), a lawyer for an

organization should ordinarily bring the issue of taking suitable action to higher authority within

the organization, including, if warranted by the circumstances, to the highest authority that can act

on behalf of the organization as determined by applicable law.

ht by the lawyer to the fullest extent

practicable. Before making a disclosure under division (b)(1), (2), or (3), a lawyer for an

organization should ordinarily bring the issue of taking suitable action to higher authority within

the organization, including, if warranted by the circumstances, to the highest authority that can act

on behalf of the organization as determined by applicable law.

[17]

Division (b) permits but does not require the disclosure of information relating to a

client’s representation to accomplish the purposes specified in divisions (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 division (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 division (b). See Rules 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.

Acting Competently to Preserve Confidentiality

[18]

Division (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

related to the representation of a client does not constitute a violation of division (c) if the lawyer

has made reasonable efforts to prevent the access or disclosure

rsons 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

related to the representation of a client does not constitute a violation of division (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 may give informed

consent to forego 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 or federal laws that govern data privacy or that impose specific

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] and [4].

d a client’s information in order to

comply with other law, such as state or federal laws that govern data privacy or that impose specific

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] and [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 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 governing data privacy, is beyond the scope of these rules.

Former Client

[20]

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.

Comparison to former Ohio Code of Professional Responsibility

as state

and federal laws governing data privacy, is beyond the scope of these rules.

Former Client

[20]

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.

Comparison to former Ohio Code of Professional Responsibility

Rule 1.6 replaces Canon 4 (A Lawyer Should Preserve the Confidences and Secrets of a

Client), including DR 4-101 (Preservation of Confidences and Secrets of a Client) and ECs 4-1 to

4-6 of the Ohio Code of Professional Responsibility.

Rule 1.6(a) generally corresponds to DR 4-101(A) by protecting the confidences and

secrets of a client under the rubric of “information relating to the representation.” To clarify that

this includes privileged information, the rule is amended to add the phrase, “including information

protected by the attorney-client privilege under applicable law.” Rule 1.6(a) also corresponds to

DR 4-101(B) by prohibiting the lawyer from revealing such information. Use of client information

is governed by Rule 1.8(b).

Rule 1.6(a) further corresponds to DR 4-101(C)(1) by exempting disclosures where the

client gives “informed consent,” including situations where disclosure is “impliedly authorized”

by the client’s informed consent.

Rule 1.6(b) addresses the exceptions to confidentiality and generally corresponds to DR 4-

101(C)(2) to (4). Rule 1.6(b)(1) is new and has no comparable Code provision. Rule 1.6(b)(2) is

6(a) further corresponds to DR 4-101(C)(1) by exempting disclosures where the

client gives “informed consent,” including situations where disclosure is “impliedly authorized”

by the client’s informed consent.

Rule 1.6(b) addresses the exceptions to confidentiality and generally corresponds to DR 4-

101(C)(2) to (4). Rule 1.6(b)(1) is new and has no comparable Code provision. Rule 1.6(b)(2) is

the future crime exception and corresponds to DR 4-101(C)(3), with the addition of “or other

person” from the Model Rule. Rule 1.6(b)(3) expands on the provisions of DR 7-102(B)(1) by

permitting disclosure of information related to the representation of a client, including privileged

information, to mitigate substantial injury to the financial interests or property of another that has

been caused by the client’s illegal or fraudulent act and the client has used the lawyer’s services to

further the commission of the illegal or fraudulent act.

Rule 1.6(b)(4) is new, and codifies the common practice of lawyers to consult with other

lawyers about compliance with these rules. Rule 1.6(b)(5) tracks DR 4-101(C)(4), adding “any

disciplinary matter” to clarify the rule’s application in that situation. Rule 1.6(b)(6) is the same as

DR 4-101(C)(2).

Rule 1.6(c) makes explicit that other rules create mandatory rather than discretionary

disclosure duties. For example, Rules 3.3 and 4.1 correspond to DR 7-102(B), which requires

disclosure of client fraud in certain circumstances.

Comparison to ABA Model Rules of Professional Conduct

The additions to Rule 1.6(a) are intended to clarify that “information relating to the

representation” includes information protected by the attorney-client privilege.

The exceptions to confidentiality in Rule 1.6(b) generally track those found in the Model

Rule, although two of Ohio’s exceptions [Rules 1.6(b)(2) and (3)] permit more disclosure than the

Model Rule allows.

fessional Conduct

The additions to Rule 1.6(a) are intended to clarify that “information relating to the

representation” includes information protected by the attorney-client privilege.

The exceptions to confidentiality in Rule 1.6(b) generally track those found in the Model

Rule, although two of Ohio’s exceptions [Rules 1.6(b)(2) and (3)] permit more disclosure than the

Model Rule allows.

Rule 1.6(b)(1) is the same as the Model Rule and reflects the policy that threatened death

or serious bodily harm, regardless of criminality, create the occasion for a lawyer’s discretionary

disclosure. Nineteen jurisdictions have such a provision.

Rule 1.6(b)(2) differs from the Model Rule by maintaining the traditional formulation of

the future crime exception currently found in DR 4-101(C)(3), rather than the future crime/fraud

provision in Model Rule 1.6(b)(2) that is tied to “substantial injury to the financial interests of

another.” Twenty-two jurisdictions, including Ohio, opt for this stand-alone future crime

exception. This exception is retained because it mirrors the public policy embodied in the criminal

law.

Rule 1.6(b)(3) differs from Model Rule 1.6(b)(3) in two ways: it deletes the words

“prevent” and “rectify;” and it allows for disclosure to mitigate the effects of the client’s

commission of an illegal (as opposed to criminal) or fraudulent act. The prevention of fraud is

deleted from Rule 1.6(b)(3) because it is addressed in Rule 4.1(b). The extension of “criminal” to

“illegal” is consistent with the use of the term “illegal” in Rules 1.2(d), 1.16(b), 4.1(b), and 8.4(b),

but it is not found in either the Model Rule or Ohio disciplinary rules as an exception to

confidentiality. Only two jurisdictions have included illegal conduct as justification for disclosure

in Rule 1.6.

Rule 1.6(b)(4) is similar to the Model Rule.

Rule 1.6(b)(5) adds “disciplinary matter” to clarify the application of the exception.

“illegal” in Rules 1.2(d), 1.16(b), 4.1(b), and 8.4(b),

but it is not found in either the Model Rule or Ohio disciplinary rules as an exception to

confidentiality. Only two jurisdictions have included illegal conduct as justification for disclosure

in Rule 1.6.

Rule 1.6(b)(4) is similar to the Model Rule.

Rule 1.6(b)(5) adds “disciplinary matter” to clarify the application of the exception.

Rule 1.6(c) is substantially the same as Model Rule 1.6(b)(6), except that it clarifies the

mandatory disclosure required by other rules.