Rule 1.6. Confidentiality of Information

RPC 1.6

CONFIDENTIALITY OF INFORMATION

(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 to the extent the lawyer reasonably believes necessary:

(1) shall reveal information relating to the representation of a client to prevent reasonably

certain death or substantial bodily harm;

(2) may reveal information relating to the representation of a client to prevent the client

from committing a crime;

(3) may reveal information relating to the representation of a client 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) may reveal information relating to the representation of a client to secure legal advice

about the lawyer’s compliance with these Rules;

(5) may reveal information relating to the representation of a client 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) may reveal information relating to the representation of a client to comply with a court

order;

(7) may reveal information relating to the representation 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; or

e representation of a client to comply with a court

order;

(7) may reveal information relating to the representation 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; or

(8) may reveal information relating to the representation of a client to inform a tribunal

about any client’s breach of fiduciary responsibility when the client is serving as a court

appointed fiduciary such as a guardian, personal representative, or receiver.

(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.

[Adopted effective September 1, 1985; Amended effective September 1, 1990; September 1, 2006;

September 1, 2016; September 1, 2018.]

Comments

See also Washington Comment [19].

[1] [Washington revision] This Rule governs the disclosure by a lawyer of information relating

to the representation of a 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

to the representation of a 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] [Washington revision] 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 1.0A(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.

[Comment 2 amended effective April 14, 2015.]

[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

ntiality 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. See also Scope.

[Comment 3 amended effective September 1, 2011.]

[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.

Authorized Disclosure

[5] [Washington revision] 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

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 information relating to a client of the firm to other lawyers

or LLLTs within the firm, unless the client has instructed that particular information be confined

to specified lawyers or LLLTs.

[Comment 5 amended effective April 14, 2015.]

Disclosure Adverse to Client

[6] [Washington revision] 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 requires 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 must 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

e

threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a

town’s water supply must 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] [Reserved.]

[8] [Reserved.]

[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)(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

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] 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] [Reserved.]

Detection of Conflicts of Interest

[13] [Washington revision] 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 RPC 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

se 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) 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. See also RPC 1.1,

comments [6], [7], and [10] as to decisions to associate other lawyers or LLLTs.

[Comment 13 adopted effective September 1, 2016.]

[14] 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)

ns to associate other lawyers or LLLTs.

[Comment 13 adopted effective September 1, 2016.]

[14] 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.

[Comment 14 adopted effective September 1, 2016.]

[15] [Washington revision] A lawyer may be ordered to reveal information relating to the

representation of a client by a court. Absent informed consent of the client to do otherwise, the

lawyer should 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.

See also Washington Comment [26].

[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

he 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] [Washington revision] Paragraphs (b)(2) through (b)(7) permit but do not require the

disclosure of information relating to a client’s representation to accomplish the purposes

specified in those paragraphs. In exercising the discretion conferred by those paragraphs, 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), 3.3, 4.1(b), and 8.1. See also Rule 1.13(c), which permits

disclosure in some circumstances whether or not Rule 1.6 permits the disclosure.

See also Washington Comment [25]

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), 3.3, 4.1(b), and 8.1. See also Rule 1.13(c), which permits

disclosure in some circumstances whether or not Rule 1.6 permits the disclosure.

See also Washington Comment [25].

Acting Competently to Preserve Confidentiality

[18] 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 RPC 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 may give informed consent to forgo security measures that would otherwise be required

by this rule

safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to

represent clients (e.g., by making a device or important piece of software excessively difficult to

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

rule or may give informed consent to forgo security measures that would otherwise be required

by this rule. Whether a lawyer may be required to take additional steps to safeguard a client’s

information in order to comply with other law, such as state and federal laws that govern data

privacy or that impose notification requirements upon the loss of, or unauthorized access to,

electronic information, is beyond the scope of these rules. For a lawyer’s duties when sharing

information with nonlawyers outside the lawyer’s own firm, see RPC 5.3, Comments [3]-[4].

[Comment 16 renumbered to 18 and amended effective September 1, 2016.]

[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

pectation 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.

[Comment 17 renumbered to 19 and amended effective September 1, 2016.]

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.

Additional Washington Comments (21-28)

[21] The phrase “information relating to the representation” should be interpreted broadly. The

“information” protected by this Rule includes, but is not necessarily limited to, confidences and

secrets. “Confidence” refers to information protected by the attorney client privilege under

applicable law, and “secret” refers to other information gained in the professional relationship

that the client has requested be held inviolate or the disclosure of which would be embarrassing

or would be likely to be detrimental to the client.

Disclosure Adverse to Client

[22] Washington’s Rule 1.6(b)(2), which authorizes disclosure to prevent a client from

committing a crime, is significantly broader than the corresponding exception in the Model Rule.

While the Model Rule permits a lawyer to reveal information relating to the representation to

prevent the client from “committing a crime . .

ly to be detrimental to the client.

Disclosure Adverse to Client

[22] Washington’s Rule 1.6(b)(2), which authorizes disclosure to prevent a client from

committing a crime, is significantly broader than the corresponding exception in the Model Rule.

While the Model Rule permits a lawyer to reveal information relating to the representation to

prevent the client from “committing a crime . . . 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 the lawyer’s services,” Washington’s Rule permits the lawyer to reveal such information to

prevent the commission of any crime.

[23] [Reserved.]

[24] [Reserved.]

[25] The exceptions to the general rule prohibiting unauthorized disclosure of information

relating to the representation “should not be carelessly invoked.” In re Boelter, 139 Wn.2d 81,

91, 985 P.2d 328 (1999). A lawyer must make every effort practicable to avoid unnecessary

disclosure of information relating to a representation, to limit disclosure to those having the need

to know it, and to obtain protective orders or make other arrangements minimizing the risk of

avoidable disclosure.

[26] Washington has not adopted that portion of Model Rule 1.6(b)(6) permitting a lawyer to

reveal information related to the representation to comply with “other law.” Washington’s

omission of this phrase arises from a concern that it would authorize the lawyer to decide

whether a disclosure is required by “other law,” even though the right to confidentiality and the

right to waive confidentiality belong to the client. The decision to waive confidentiality should

only be made by a fully informed client after consultation with the client’s lawyer or by a court of

competent jurisdiction

is phrase arises from a concern that it would authorize the lawyer to decide

whether a disclosure is required by “other law,” even though the right to confidentiality and the

right to waive confidentiality belong to the client. The decision to waive confidentiality should

only be made by a fully informed client after consultation with the client’s lawyer or by a court of

competent jurisdiction. Limiting the exception to compliance with a court order protects the

client’s interest in maintaining confidentiality while insuring that any determination about the

legal necessity of revealing confidential information will be made by a court. It is the need for a

judicial resolution of such issues that necessitates the omission of “other law” from this Rule.

Withdrawal

[27] After withdrawal the lawyer is required to refrain from disclosing the client’s confidences,

except as otherwise permitted by Rules 1.6 or 1.9. A lawyer is not prohibited from giving notice

of the fact of withdrawal by this Rule, Rule 1.8(b), or Rule 1.9(c). If the lawyer’s services will be

used by the client in furthering a course of criminal or fraudulent conduct, the lawyer must

withdraw. See Rule 1.16(a)(1). Upon withdrawal from the representation in such circumstances,

the lawyer may also disaffirm or withdraw any opinion, document, affirmation, or the like. If the

client is an organization, the lawyer may be in doubt about whether contemplated conduct will

actually be carried out by the organization. When a lawyer requires guidance about compliance

with this Rule in connection with an organizational client, the lawyer may proceed under the

provisions of Rule 1.13(b).

Other

[28] This Rule does not relieve a lawyer of their obligations under Rule 5.4(b) of the Rules for

Enforcement of Lawyer Conduct.