Rule 1.05. also furnishes considerable protection to other information falling outside the scope

RULE 1.05. also furnishes considerable protection to other information falling outside the scope

of the privilege Rule 1.05 extends ethical protection generally to unprivileged information

relating to the client or furnished by the client during the course of or by reason of the

representation of the client. In this respect Rule 1.05 accords with general fiduciary principles

of agency.

5. The requirement of confidentiality applies to government lawyers who may disagree with

the policy goals that their representation is designed to advance.

Disclosure for Benefit of Client

6. A lawyer may be expressly authorized to make disclosures to carry out the representation

and generally is recognized as having implied-in-fact authority to make disclosures about a

client when appropriate in carrying out the representation to the extent that the client’s

instructions do not limit that authority. In litigation, for example, a lawyer may disclose

information by admitting a fact that cannot properly be disputed, or in negotiation by making

a disclosure that facilitates a satisfactory conclusion. The effect of Rule 1.05 is to require the

lawyer to invoke, for the client, the attorney-client privilege when applicable; but if the court

improperly denies the privilege, under paragraph (c)(4) the lawyer may testify as ordered by

the court or may test the ruling as permitted by Rule 3.04(d).

7. In the course of a firms practice, lawyers may disclose to each other and to appropriate

employee’s information relating to a client, unless the client has instructed that particular

information be confined to specified lawyers. Sub-paragraphs (b)(l) and (c)(3) continue these

practices concerning disclosure of confidential information within the firm.

ling as permitted by Rule 3.04(d).

7. In the course of a firms practice, lawyers may disclose to each other and to appropriate

employee’s information relating to a client, unless the client has instructed that particular

information be confined to specified lawyers. Sub-paragraphs (b)(l) and (c)(3) continue these

practices concerning disclosure of confidential information within the firm.

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Use of Information

8. Following sound principles of agency law, sub-paragraphs (b)(2) and (4) subject a lawyer

to discipline for using information relating to the representation in a manner disadvantageous

to the client or beneficial to the lawyer or a third person, absent the informed consent of the

client. The duty not to misuse client information continues after the client-lawyer relationship

has terminated. Therefore, the lawyer is forbidden by sub-paragraph (b)(3) to use, in absence

of the client’s informed consent, confidential information of the former client to the client’s

disadvantage, unless the information is generally known.

Discretionary Disclosure Adverse to Client

9. In becoming privy to information about a client, a lawyer may foresee that the client

intends serious and perhaps irreparable harm. To the extent a lawyer is prohibited from

making disclosure, the interests of the potential victim are sacrificed in favor of preserving the

client’s information-usually unprivileged information-even though the client’s purpose is

wrongful. On the other hand, a client who knows or believes that a lawyer is required or

permitted to disclose a client’s wrongful purposes may be inhibited from revealing facts

which would enable the lawyer to counsel effectively against wrongful action. Rule 1.05 thus

involves balancing the interests of one group of potential victims against those of another.

The criteria provided by the Rule are discussed below.

10. Rule 5.03 (d)(l) Texas Rules of Civil Evidence (Tex. R. Civ. Evid.), and Rule 5.03(d)(1),

Texas Rules of Criminal Evidence (Tex R

om revealing facts

which would enable the lawyer to counsel effectively against wrongful action. Rule 1.05 thus

involves balancing the interests of one group of potential victims against those of another.

The criteria provided by the Rule are discussed below.

10. Rule 5.03 (d)(l) Texas Rules of Civil Evidence (Tex. R. Civ. Evid.), and Rule 5.03(d)(1),

Texas Rules of Criminal Evidence (Tex R. Crim. Evid.), indicate the underlying public policy

of furnishing no protection to client information where the client seeks or uses the services of

the lawyer to aid in the commission of a crime or fraud. That public policy governs the

dictates of Rule 1.05. Where the client is planning or engaging in criminal or fraudulent

conduct or where the culpability of the lawyers conduct is involved, full protection of client

information is not justified.

11. Several other situations must be distinguished. First, the lawyer may not counsel or assist

a client in conduct that is criminal or fraudulent. See Rule 1.02(c). As noted in the Comment

to that Rule there can be situations where the lawyer may have to reveal information relating

to the representation in order to avoid assisting a client’s criminal or fraudulent conduct, and

sub-paragraph (c)(4) permits doing so. A lawyer’s duty under Rule 3.03(a) not to use false or

fabricated evidence is a special instance of the duty prescribed in Rule 1.02(c) to avoid

assisting a client in criminal or fraudulent conduct, and sub-paragraph (c)(4) permits revealing

information necessary to comply with Rule 3.03(a) or (b). The same is true of compliance

with Rule 4.01. See also paragraph (f).

12. Second, the lawyer may have been innocently involved in past conduct by the client that

was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.02(c),

because to counsel or assist criminal or fraudulent conduct requires knowing that the conduct

is of that character

with Rule 3.03(a) or (b). The same is true of compliance

with Rule 4.01. See also paragraph (f).

12. Second, the lawyer may have been innocently involved in past conduct by the client that

was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.02(c),

because to counsel or assist criminal or fraudulent conduct requires knowing that the conduct

is of that character. Since the lawyer’s services were made an instrument of the client’s crime

or fraud, the lawyer has a legitimate interest both in rectifying the consequences of such

conduct and in avoiding charges that the lawyer’s participation was culpable. Sub-paragraph

(c)(6) and (8) give the lawyer professional discretion to reveal both unprivileged and

privileged information in order to serve those interests. See paragraph (g). In view of Tex. R.

26

Civ. Evid. Rule 5.03(d)(1), and Tex. R. Crim. Evid. 5.03(d)(1), however, rarely will such

information be privileged.

13. Third, the lawyer may learn that a client intends prospective conduct that is criminal or

fraudulent. The lawyer’s knowledge of the client’s purpose may enable the lawyer to prevent

commission of the prospective crime or fraud. When the threatened injury is grave, the

lawyer’s interest in preventing the harm may be more compelling than the interest in

preserving confidentiality of information. As stated in sub-paragraph (c)(7), the lawyer has

professional discretion, based on reasonable appearances, to reveal both privileged and

unprivileged information in order to prevent the client’s commission of any criminal or

fraudulent act. In some situations of this sort, disclosure is mandatory. See paragraph (e) and

Comments 18-20.

14

erest in

preserving confidentiality of information. As stated in sub-paragraph (c)(7), the lawyer has

professional discretion, based on reasonable appearances, to reveal both privileged and

unprivileged information in order to prevent the client’s commission of any criminal or

fraudulent act. In some situations of this sort, disclosure is mandatory. See paragraph (e) and

Comments 18-20.

14. The lawyers exercise of discretion under paragraphs (c) and (d) involves consideration of

such factors as the magnitude, proximity, and likelihood of the contemplated wrong, 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

client’s conduct in question. In any case a disclosure adverse to the client’s interest should be

no greater than the lawyer believes necessary to the purpose. Although preventive action is

permitted by paragraphs (c) and (d), failure to take preventive action does not violate those

paragraphs. But see paragraphs (e) and (f). Because these rules do not define standards of civil

liability of lawyers for professional conduct, paragraphs (c) and (d) do not create a duty on the

lawyer to make any disclosure and no civil liability is intended to arise from the failure to

make such disclosure.

15. A lawyer entitled to a fee necessarily must be permitted to prove the services rendered in

an action to collect it, and this necessity is recognized by sub-paragraphs (c)(5) and (d)(2)(iv).

This aspect of the rule, in regard to privileged information, expresses the principle that the

beneficiary of a fiduciary relationship may not exploit the relationship to the detriment of the

fiduciary. Any disclosure by the lawyer, however, should be as protective of the client’s

interests as possible.

16. If the client is an organization, a lawyer also should refer to Rule 1.13 in order to

determine the appropriate conduct in connection with this Rule

presses the principle that the

beneficiary of a fiduciary relationship may not exploit the relationship to the detriment of the

fiduciary. Any disclosure by the lawyer, however, should be as protective of the client’s

interests as possible.

16. If the client is an organization, a lawyer also should refer to Rule 1.13 in order to

determine the appropriate conduct in connection with this Rule.

Client with Diminished Capacity

17. When representing a client who may have diminished capacity, a lawyer should review