Rule 1.6. Confidentiality of Information

(a) A lawyer shall not reveal confidential information relating to the

representation of a client unless the client gives informed consent, the

disclosure is impliedly authorized in order to carry out the representation or

the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act;

(2) to prevent the client from committing a fraud that is reasonably

certain to result in substantial injury to the financial interests or property of

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

lawyer’s services;

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

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

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

which the client has used the lawyer’s services;

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

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

between the lawyer and the client, to establish a defense to a criminal charge

or civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to allegations in any proceeding concerning the

lawyer’s representation of the client;

(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; or

(8) to protect the best interests of an individual when the lawyer has been

appointed to act as a guardian ad litem.

rder;

(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; or

(8) to protect the best interests of an individual when the lawyer has been

appointed to act as a guardian ad litem.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or

unauthorized disclosure of, or unauthorized access to, confidential information

relating to the representation of a client.

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 confidential

information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the

lawyer’s duty not to reveal confidential 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 confidential 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 confidential

information relating to the representation. See Rule 1.0(b) for the definition of

confidential information and 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

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.

[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 confidential

information relating to the representation, whatever its source. A lawyer may

not disclose such information except as authorized or required by the Rules of

Professional Conduct or other law. See also Scope.

[4] Paragraph (a) prohibits a lawyer from revealing confidential 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

thorized or required by the Rules of

Professional Conduct or other law. See also Scope.

[4] Paragraph (a) prohibits a lawyer from revealing confidential 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] 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] Although the public interest is usually best

served by a strict rule requiring lawyers to preserve the confidentiality of

information relating to the representation of their clients, the confidentiality

rule is subject to limited exceptions. Paragraph (b)(1) recognizes the overriding

value of life and physical integrity and permits disclosure reasonably necessary

to prevent reasonably certain death or substantial bodily harm. Such harm is

reasonably certain to occur if it will be suffered imminently or if there is a

present and substantial threat that a person will suffer such harm at a later

date if the lawyer fails to take action necessary to eliminate the threat

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 accidentally discharged toxic waste into a

town’s water supply may reveal this information to the authorities if there is a

present and substantial risk that a person who drinks the water will contract a

life-threatening or debilitating disease and the lawyer’s disclosure is necessary

to eliminate the threat or reduce the number of victims.

[7] Paragraph (b)(2) is a limited exception to the rule of confidentiality that

permits the lawyer to reveal information to the extent necessary to enable

affected persons or appropriate authorities to prevent the client from committing a fraud, as defined in Rule 1.0(d), that is reasonably certain to result in

substantial injury to the financial or property interests of another and in

furtherance of which the client has used or is using the lawyer’s services. Such

a serious abuse of the client-lawyer relationship by the client forfeits the

protection of this Rule. The client can, of course, prevent such disclosure by

refraining from the wrongful conduct. Although paragraph (b)(2) does not

require the lawyer to reveal the client’s misconduct, the lawyer may not counsel

or assist the client in conduct the lawyer knows is criminal or fraudulent. See

Rule 1.2(d). See also Rule 1.16 with respect to the lawyer’s obligation or right to

withdraw from the representation of the client in such circumstances, 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

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.

[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 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

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] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the

services rendered in an action to collect it. This aspect of the rule expresses the

principle that the beneficiary of a fiduciary relationship may not exploit it to the

detriment of the fiduciary.

[12] Other law may require that a lawyer disclose information about a client.

For example, see Wyoming Statute Sections 14-3-205 and 35-20-103. Whether

such a law supersedes Rule 1.6 is a question of law beyond the scope of these

Rules. When disclosure of information relating to the representation appears to

be required by other law, the lawyer must discuss the matter with the client to

the extent required by Rule 1.4. If, however, the other law supersedes this Rule

and requires disclosure, paragraph (b)(6) permits the lawyer to make such

disclosures as are necessary to comply with the law

of law beyond the scope of these

Rules. When disclosure of information relating to the representation appears to

be required by other law, the lawyer must discuss the matter with the client to

the extent required by Rule 1.4. If, however, the other law supersedes this Rule

and requires disclosure, paragraph (b)(6) permits the lawyer to make such

disclosures as are necessary to comply with the law.

[13] A lawyer appointed to act as a guardian ad litem represents the best

interests of that individual, not the individual. As stated in paragraph (b)(8),

the lawyer has professional discretion to reveal information in order to protect

the individual’s best interests. Any such disclosure should be no greater than

that which the lawyer reasonably believes necessary to protect the individual’s

best interests.

Detection of Conflicts of Interest. [14] Paragraph (b)(7) recognizes that

lawyers in different firms may need to disclose limited information to each other

to detect and resolve conflicts of interest, such as when a lawyer is considering

an association with another firm, two or more firms are considering a merger,

or a lawyer is considering the purchase of a law practice. See Rule 1.17,

Comment [7]. Under these circumstances, lawyers and law firms are permitted

to disclose limited information, but only once substantive discussions regarding

the new relationship have occurred. Any such disclosure should ordinarily

include no more than the identity of the persons and entities involved in a

matter, a brief summary of the general issues involved, and information about

whether the matter has terminated. Even this limited information, however,

should be disclosed only to the extent reasonably necessary to detect and resolve

conflicts of interest that might arise from the possible new relationship

hould 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.

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

further disclosed only to the extent necessary to detect and resolve conflicts of

interest. Paragraph (b)(7) does not restrict the use of information acquired by

means independent of any disclosure pursuant to paragraph (b)(7). Paragraph

t when

exploring an association with another firm and is beyond the scope of these

Rules.

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

further disclosed only to the extent necessary to detect and resolve conflicts of

interest. Paragraph (b)(7) does not restrict the use of information acquired by

means independent of any disclosure pursuant to paragraph (b)(7). Paragraph

(b)(7) also does not affect the disclosure of information within a law firm when

the disclosure is otherwise authorized, see Comment [5], such as when a lawyer

in a firm discloses information to another lawyer in the same firm to detect and

resolve conflicts of interest that could arise in connection with undertaking a

new representation.

[16] 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, paragraph

n

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, paragraph

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

[17] 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. 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.

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

relating to a client’s representation to accomplish the purposes specified in

paragraphs (b)(1) through (b)(8). 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

jured 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).

Acting Competently to Preserve Confidentiality. [19] Paragraph (c) requires a

lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against

inadvertent or unauthorized disclosure by the lawyer or other persons who are

participating in the representation of the client or who are subject to the

lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or

the inadvertent or unauthorized disclosure of, information relating to the

representation of a client does not constitute a violation of paragraph (c) if the

lawyer has made reasonable efforts to prevent the access or disclosure. Factors

to be considered in determining the reasonableness of the lawyer’s efforts

include, but are not limited to, the sensitivity of the information, the likelihood

of disclosure if additional safeguards are not employed, the cost of employing

additional safeguards, the difficulty of implementing the safeguards, and the

extent to which the safeguards adversely affect the lawyer’s ability to represent

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

difficult to use). A client may require the lawyer to implement special security

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

security measures that would otherwise be required by this Rule

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. Whether a

lawyer may be required to take additional steps to safeguard a client’s

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

that govern data privacy or that impose notification requirements upon the loss

of, or unauthorized access to, electronic information, is beyond the scope of these

Rules. For a lawyer’s duties when sharing information with nonlawyers outside

the lawyer’s own firm, see Rule 5.3, Comments [3]-[4].

[20] 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 that govern data privacy,

is beyond the scope of these Rules.

Former Client

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.

Former Client. [21] 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.

Definitional Cross-References

“Firm” See Rule 1.0(d)

“Fraud” See Rule 1.0(e)

“Informed consent” See Rule 1.0(f)

“Reasonably” See Rule 1.0(i)

“Reasonably believes” See Rule 1.0(j)

“Substantial” See Rule 1.0(m)