Introduction
Lawyers’ duty of confidentiality sets us apart from all other professions. To be sure, medical professionals must generally keep their patients’ information confidential, but statutes and government regulations demand that they disclose evidence of child abuse, provide data to government agencies, etc. Military professionals must keep secrets too, but the range of their confidentiality duty extends only to certain limited types of information.
Of all the duties that lawyers must obey, our confidentiality duty can also create our greatest dilemmas. Lawyers who know the location of a body buried by their murderous client must keep it secret, despite the most heartfelt plea for information from an anguished parent of the missing victim.
As difficult as it can be to navigate conflicts of interest, our confidentiality duty can create nearly insoluble conflicts problems. Lawyers who learn that their client plans to open a new store in a certain part of town must keep that secret from another client who plans to also expand into that area—although that other client may waste a million dollars in its expansion effort because it will be too late.
Given the enormous stakes in analyzing our confidentiality duty, one might expect that the ethics rules would provide the clearest guidance in this area. But exactly the opposite is true.
In one of the most ironic twists involving ethics principles, there is little if any area in which the rules have changed so much as the ABA ethics precepts evolved.
And perhaps even more disturbing, there is no greater variation among states’ ethics rules than those involving confidentiality. Some states require lawyers to disclose a client’s intent to commit a crime, while other states forbid such disclosure. So just when lawyers need the clearest ethics guidance, they cannot find it.
This most interesting aspect of our ethics rules all starts with determining what information we must keep confidential. This and subsequent articles in this series focus on the fascinating evolution of the ABA’s approach to the three variables governing our confidentiality duty: (1) the information’s source; (2) the time at which the lawyer obtained the information; and (3) the information’s content (judged by whether disclosure would harm the client).
The series also will address lawyers’ use of the information to help third parties or themselves. It concludes with a discussion of the confidentiality duty that lawyers owe to former clients.
While lawyers might expect that the ABA’s rules revisions would move toward a logical and easily understood standard over the years, the reverse actually occurred. The ABA Model Code’s standard represents what most lawyers would think to be the best approach. The ABA Model Rules articulate a standard that seems ridiculously overbroad, and which is universally acknowledged to be unenforceable as it is written.
Source of the Information
Ethics rules and other authorities defining the scope of client-related information lawyers must protect focus on three variables: (1) the information’s source; (2) the time at which the lawyer obtained the information; and (3) the information’s content (judged by whether disclosure would harm the client). The first two variables involve what could be seen as the information’s input to lawyers, and the third variable involves lawyers’ output.
This article addresses the first element—the information’s source.
ABA Canons
The original 1908 ABA Canons of Professional Ethics dealt with confidentiality almost as an afterthought in Canon 6 (“Adverse Influences and Conflicting Interests”):
The obligation to represent the client with undivided loyalty and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.
ABA Canons of Professional Ethics, Canon 6 (Aug. 27, 1908) (emphasis added).Perhaps the absence of a separate confidentiality provision reflected the original canons’ focus on litigation ethics. Still, it is somewhat surprising that the first ABA statement of lawyers’ ethics duties did not explicitly emphasize confidentiality.
This original ABA pronouncement on confidentiality mentioned “secrets or confidences”—a phrase which carried over to the 1969 ABA Model Code of Professional Responsibility.
On July 26, 1928, the ABA adopted an explicit confidentiality canon, which it later amended on September 30, 1937:
It is the duty of a lawyer to preserve his client’s confidences. This duty outlasts the lawyer’s employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent, and even tough [sic] there are other available sources of such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or to his new client.
ABA Canons of Professional Ethics, Canon 37, amended Sept. 30, 1937 (emphases added).Thus, this 1937 ABA pronouncement seemed to focus on information lawyers learned from clients. The reference to “other available sources of such information” implied that the lawyer could obtain the information from other sources, but not that the lawyer had initially obtained the information from other sources.
ABA Model Code
The 1969 ABA Model Code of Professional Responsibility contained a much more detailed description of lawyers’ confidentiality duty:
[A] lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
ABA Model Code of Professional Responsibility, A related provision defined the information subject to this duty:
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.
ABA Model Code of Professional Responsibility,The black letter rule thus focused on information lawyers obtained from their clients. With very few exceptions, privileged communications must involve a client—so the term “confidence” presumably referred exclusively or nearly exclusively to information lawyers obtained in such private communications with clients. The ABA Model Code also protected “secrets”—defined as certain “other information gained in the professional relationship.” That phrase also seemed to limit the protection to communications between lawyers and clients, although perhaps not deserving attorney-client privilege evidentiary protection.
Reinforcing this approach, the definition used the term “gained in” rather than the term “gained during” (which some states’ ethics rules use, such as New York’s). The former focuses on the client as the source of protected information—while the latter would have emphasized the temporal aspect, implicitly recognizing nonclient sources of protect information.
However, an Ethical Consideration took a more expansive view than the black letter rule:
The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge. A lawyer should endeavor to act in a manner which preserves the evidentiary privilege; for example, he should avoid professional discussions in the presence of persons to whom the privilege does not extend. A lawyer owes an obligation to advise the client of the attorney-client privilege and timely to assert the privilege unless it is waived by the client.
ABA Model Code of Professional Responsibility,This was a surprisingly broad statement to include in an Ethical Consideration, rather than in the black letter rule. It would be understandable to include within lawyers’ confidentiality duty information that nonclients might also know. That would justifiably prohibit lawyers from publicly disclosing damaging information about a client just because the client might have shared it with some intimate acquaintance who would never disclose it any further. However, the phrase “without regard to the … source of information” represented a dramatic expansion from the implicit approach found in the ABA Canons and the black letter ABA Code provision. That phrase clearly referred to information lawyers obtained from someone other than their clients.
When the ABA changed its rules again in 1983, that Ethical Consideration sentence became the applicable rule’s entire theme.
ABA Model Rules
The 1983 ABA Model Rules of Professional Conduct contain a remarkably broad view of information subject to lawyers’ confidentiality duty:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent [or] the disclosure is impliedly authorized [by the Rule’s exceptions].
Two comments provide guidance:
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 Rules of Professional Conduct or other law.
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.
Thus, the 1969 ABA Model Code’s small phrase “without regard to the … source of information” became a full-blown principle in the 1983 ABA Model Rules. As explained below, ethics opinions have taken the ABA Model Rules language at its word—and included even accidentally obtained information and information in the public record (among other types of information) within lawyers’ confidentiality duty.
Comparison of Model Code and Model Rules
A 2009 Nevada legal ethics opinion provided an excellent description of the ABA Model Rules’ expansion of lawyers’ confidentiality duty over that defined by the earlier ABA Model Code:
In contrast to predecessor Rule DR-4-101, the language of Rule 1.6(a) has three remarkable omissions from the historical rule of confidentiality.
The first is the omission of the qualifier “confidential” between “reveal” and “information.” As a result, all information relating to the representation of the client is thereby made confidential. Rule
The second remarkable aspect of Rule 1.6(a) is that the confidential information need not be information that is “adverse” to the client. Rule
The final remarkable omission from Rule 1.6 is an exception for information already generally known or public. This element is contained in the Restatement’s definition of “confidential client information,” but omitted from Rule 1.6.
Thus, the language of Rule 1.6(a) is so broad that it is—at least on its face—without limitation. Rule 1.6(a) requires that ALL information relating to the representation of a client is confidential and protected from disclosure.
Nevada Ethics The Nevada opinion explained the practical consequences of the ABA Model Rules’ more expansive definition:
The Rule applies:
(1) Even if the client has not requested that the information be held in confidence or does not consider it confidential. Thus, it operates automatically;
(2) Even though the information is not protected by the attorney-client privilege;
(3) Regardless of when the lawyer learned of the information—even before or after the representation;
(4) Even if the information is not embarrassing or detrimental to client;
(5) Whatever the source of the information; i.e., whether the lawyer acquired the information in a confidential communication from the client or from a third person or accidentally; and
(6) (In contrast to the attorney-client privilege) even if the information is already generally known—or even public information.
Id. (emphasis in original indicated by underscore, all other emphasis added). The opinion then provided some examples of how lawyers might violate the ABA Model Rules confidentiality duty:
The following are examples of common situations which raise issues under Rule 1.6(a) in the absence of client consent [emphasis in original]. They are offered—not as examples of Rule 1.6 violations per se—but as “food for thought” for all lawyers before communicating any information related to the representation of a client:
(1) Phoning a client when the client is not at home and leaving a message about the representation on client’s answering machine or discussing the matters with the roommate, or spouse of the client;
(2) Submitting a copy of the lawyer’s client billing statements in support of an application for fees, such as a post-judgment motion or at the end of a probate;
(3) Submitting a client list (revealing the identity of the client) to a bank to support the lawyer’s loan application;
(4) Listing some clients in a law firm brochure (revealing the identity of the clients);
(5) Processing a credit card payment (revealing the identity of the client) to the credit card company;
(6) Telling a story to friends about a recent trial without revealing the identity of the client or any other fact not contained in the public record of the case;
(7) A lawyer taking a client file or batch of discovery documents to the local photocopy shop for copying;
(8) A law firm employing an outside computer tech support person to trouble shoot the firm’s computer system;
(9) The auditing of insurance defense attorney billing statements by an insurance company auditor;
(10) A request for attorney billing statements by a homeowner to the lawyer for the homeowner’s association;
(11) A request for attorney billing statements by a disgruntled shareholder of a corporation represented by the lawyer in litigation;
(12) A request for attorney billing statements under the Open Records Act to a public entity represented by outside counsel; and
(13) The law firm’s listing of its “best” clients in Martindale-Hubbell.
Id. (footnotes omitted) (emphases added except where indicated). The Nevada legal ethics opinion concluded that disciplinary authorities must apply “common sense” when enforcing the confidentiality provisions:
By a literal reading of Rule 1.6, even a laudatory comment about a client or the client’s achievement may violate the letter of the Rule. However, the Committee believes that the absolute wording of Rule 1.6 is not literally meant to make every disclosure of the most innocuous bit of client information an ethical violation; but rather it is intended to strongly caution the lawyer to give consideration to the rule of client confidentiality—and whether the informed consent of the client should be obtained—whenever the lawyer makes any verbal, written or electronic communication relating to the client. For example, a lawyer advising his or her spouse that the lawyer will be traveling overnight to a distant city to defend the deposition of Client A in case A vs. B, is technically the revelation of “information relating to representation of a client” without client consent. The Committee suggests that common sense should be part of Rule 1.6 and the lawyer should not be disciplined for a harmless disclosure.
Id. (footnotes omitted) (emphasis in original underscored; all other emphasis added).One would think that lawyers of all people would be able to draft ethics rules that can be enforced as they are written—rather than rules that must be tempered by a “common sense” but knowing disregard for their literal language.
A 2012 article in the ABA publication Litigation stressed the same theme as the 2009 Nevada legal ethics opinion, essentially concluding that the expansive ABA Model Rules’ confidentiality duty could never be enforced as it is written:
Most lawyers know that they owe a duty of confidentiality to their clients, and they think about the duty as encompassing two concepts. They have a good working knowledge of the attorney-client privilege, and they know that they are not supposed to reveal privileged communications. They also understand, but in a vaguer way, that a client may have confidences or secrets that are not privileged but that a lawyer should not reveal. For example, a lawyer may learn via a non-privileged communication that a client is quietly working on an invention or planning to leave her employment. The lawyer would understand that the client may not want to reveal such nonpublic information, and the lawyer would guard the secret.
Most lawyers think that their duties end with such confidences and secrets. If you were to ask lawyers if they could talk freely about the identities of clients they are publicly representing (e.g., in a lawsuit) or about the facts of a case as described in open court or published opinions, most would say they could share anything that was in the public record without violating Rule. 1.6.
Edward W. Feldman, Be Careful What You Reveal, Model Rule of Professional Conduct 1.6, Litigation, at 35 (Summer/Fall 2012) (emphasis added). The Litigation article shared the Nevada legal ethics opinion’s disdain for the ABA Model Rules’ confidential duty:
Your initial reaction to this might be similar to mine: The Model Rule can’t possibly mean what it says. Read literally, it seems boundless. What is “information relating to the representation of a client”? Or, more aptly, what isn’t? Is it not at least any information in the lawyer’s entire file, including pleadings, correspondence, and the full range of non-privileged material that makes its way into a file? In most instances, the information would not be in the file if it did not relate to the representation.
Id. (emphases added). The Litigation article concluded with halfhearted praise for the Model Rules’ expansive language, to the extent that it prompts lawyers to be careful:
“Stop, think, and use common sense” is hardly a clear standard. But the advice highlights how the breadth of the rule bumps into the natural gregariousness of lawyers. They want to share their stories, both to learn and to socialize. As a practical matter, it is unlikely that most such stories would lead to discipline unless the lawyer revealed some secret or other information that led to harm to a client (essentially the position of the Restatement). Yet, most lawyers want to comport with government ethical standards and steer clear of violations, even ones that fly below the disciplinary radar. Individual lawyers will need to make their own decisions about how much information they feel comfortable “revealing” about their cases.
In the end, there is a benefit to increasing circumspection within the profession. If lawyers spend less time talking about their cases and more time talking about subjects like politics, art, or sports,
Restatement
The 2000 Restatement (Third) of the Law Governing Lawyers from the American Law Institute takes a dramatically different approach from the ABA Model Rules in defining the source of information that deserves confidentiality protection.
The Restatement excludes from its definition of protected information that which is “generally known.” As discussed above, the ABA Model Rules’ confidentiality duty explicitly extends to information from sources other than the client—presumably including even “generally known” information, or information contained in the public record.
About 40 years before the ALI drafted the Restatement (Third) of the Law Governing Lawyers, it adopted another Restatement defining agents’ confidentiality duty to their principals:
Unless otherwise agreed, an agent is subject to a duty to the principal not to use or to communicate information confidentially given him by the principal or acquired by him during the course of or on account of his agency or in violation of his duties as agent, in competition with or to the injury of the principal, on his own account or on behalf of another, although such information does not relate to the transaction in which he is then employed, unless the information is a matter of general knowledge.
Restatement (Second) of the Law of Agency §395 (1958) (emphasis added). The Restatement (Third) of the Law Governing Lawyers follows this agency principle—defining “confidential client information” as follows:
Confidential client information consists of information relating to representation of a client, other than information that is generally known.
Restatement (Third) of the Law Governing Lawyers §59 (2000) (emphasis added). Several accompanying comments provide some guidance on the definition’s scope:
This definition covers all information relating to representation of a client, whether in oral, documentary, electronic, photographic, or other forms. It covers information gathered from any source, including sources such as third persons whose communications are not protected by the attorney-client privilege. … It includes work product that the lawyer develops in representing the client, such as the lawyer’s notes to a personal file, whether or not the information is immune from discovery as lawyer work product…. It includes information acquired by a lawyer in all client-lawyer relationships…, including functioning as inside or outside legal counsel, government or private-practice lawyer, counselor or litigator, advocate or intermediary. It applies whether or not the client paid a fee, and whether a lawyer learns the information personally or through an agent, for example information acquired by a lawyer’s partners or associate lawyers or by an investigator, paralegal, or secretary. Information acquired by an agent is protected even if it was not thereafter communicated to the lawyer, such as material acquired by an investigator and kept in the investigator’s files.
Restatement (Third) of the Law Governing Lawyers §59 cmt. b (2000) (emphases added).The definition includes information that becomes known by others, so long as the information does not become generally known. … The fact that information falls outside the attorney-client privilege or work-product immunity does not determine its confidentiality under this Section.
A lawyer may learn information relevant to representation of a client in the course of representing another client, from casual reading or in other accidental ways. … In the course of representation, a lawyer may learn confidential information about the client that is not necessary for the representation but which is of a personal or proprietary nature or other character such that the client evidently would not wish it disclosed. Such information is confidential under this Section.
However, the Restatement then turns away from this broad approach, and focuses on the “generally known” standard which plays no role in the ABA Model Rules’ definition:
Confidential client information does not include information that is generally known. Such information may be employed by lawyer who possesses it in permissibly representing other clients … and in other contexts where there is a specific justification for doing so…. Information might be generally known at the time it is conveyed to the lawyer or might become generally known thereafter. At the same time, the fact that information has become known to some others does not deprive it of protection if it has not become generally known in the relevant sector of the public.
Restatement (Third) of the Law Governing Lawyers §59 cmt. d (2000) (emphases added). The Restatement explicitly describes a particular type of “generally known” information, which common sense would indicate that lawyers may freely disclose and use without clients’ consent:
Confidential client information does not include what a lawyer learns about the law, legal institutions such as courts and administrative agencies, and similar public matters in the course of representing clients. Such information is part of the general fund of information available to the lawyer. During legal research of an issue while representing a client, a lawyer may discover a particularly important precedent or devise a novel legal approach that is useful both in the immediate matter and in other representations. The lawyer and other members of the lawyer’s firm may use and disclose that information in other representations, so long as they thereby disclose no confidential client information except as permitted by [another section]. A lawyer may use such information—about the state of the law, the best way to approach an administrative agency, the preferable way to frame an argument before a particular judge—in a future, otherwise unrelated representation that is adverse to the former client.
Restatement (Third) of the Law Governing Lawyers §59 cmt. e (2000) (emphases added). Interestingly, information in the public record might not be “generally known”:
Whether information is generally known depends on all circumstances relevant in obtaining the information. Information contained in books or records in public libraries, public-record depositaries such as government offices, or in publicly accessible electronic-data storage is generally known if the particular information is obtainable through publicly available indexes and similar methods of access. Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense. Special knowledge includes information about the whereabouts or identity of a person or other source from which the information can be acquired, if those facts are not themselves generally known.
Id. (emphasis added). The Restatement‘s reporter’s note emphasizes the Restatement‘s rejection of the ABA Model Rules formulation. The note then explains the Restatement‘s reliance in the current client context on the ABA Model Rules approach to a lawyer’s confidentiality duty to former clients (defined in
…
The position taken in the Section and Comment—that “generally known” information is not part of the definition of confidential client information for either present or past clients—adheres to
The Restatement‘s reporter’s note even acknowledges that its “generally known” standard does not find support in any case law:
No judicial decisions have been found that specifically address the issues raised here [in Comment (e)]. The Section is based on the principles behind the concept of generally known information, the customary and accepted practices of lawyers, and the public interest in effective professional practice consistent with the general protection of confidential client information.
Restatement (Third) of the Law Governing Lawyers §59 cmt. e (2000) (emphasis added).The Restatement‘s “generally known” standard almost surely reflects the approach that most lawyers would find more logical than the ABA Model Rules approach—and which many lawyers undoubtedly follow in their day-to-day conduct.
State Variations
Most states have adopted the ABA Model Rules’ expansive definition of confidential client information—regardless of its source. Some states continue to follow the ABA Model Code formulation, which took a narrower approach.
Although there are many state variations, it is worth focusing on two jurisdictions with large concentrations of lawyers.
District of Columbia
The District of Columbia’s ethics rules match the ABA Model Code’s definition.
D.C. Rule of Professional Conduct 1.6(b) states: “‘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.”
A 2004 District of Columbia legal ethics opinion noted the difference between the district’s rules and the ABA Model Rules:
D.C. Rule 1.6(a) provides that a lawyer may not reveal “a confidence or secret of the lawyer’s client,” except under certain specified circumstances. Rule 1.6(b) defines a “confidence” as “information protected by the attorney-client privilege under applicable law,” and “secret” as any “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.” Thus, unlike
New York
The New York ethics rules follow the Restatement approach.
New York Rule of Professional Conduct 1.6 states in subsections (a) and (b):
A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person…. “Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.
(Emphases added).Thus, the New York ethics rules adopt the Restatement‘s exclusion of information that is “generally known” from its definition of protected information.
A 2013 legal ethics opinion from the New York state bar provided some guidance about this approach, which mirrors the Restatement‘s analysis:
The fact that foreclosure proceedings are a matter of public record does not make the information “generally known” (which would take it outside the purview of “confidential information”). Comment [4A] to Rule 1.6 says, in relevant part: “Information that is generally known in the local community or in the trade, field or profession to which the information relates is also not protected, unless the client and the lawyer have otherwise agreed. Information is not ‘generally known’ simply because it is in the public domain or available in a public file.” [Emphasis in original.]
The emphasized sentence in the quoted language is significant because in 2011 it replaced the following two sentences that were originally in Comment [4A]: “Information that is in the public domain is not protected unless the information is difficult or expensive to discover. For example, a public record is confidential information when it may be obtained only through great effort or by means of a Freedom of Information request or other process.”
These two original sentences were criticized as inaccurate, and the New York State Bar Association therefore removed them from Comment [4A] in 2011 and substituted the single sentence in today’s Comment [4A] (emphasized above). This legislative history strongly suggests that information in the public domain may be protected as confidential information even if the information is not “difficult or expensive to discover” and even if it could be obtained without “great effort” and without a Freedom of Information request or other formal process.
Here, we think the information in question cannot be “generally known.” In our view, information is generally known only if it is known to a sizeable percentage of people in “the local community or in the trade, field or profession to which the information relates.” Given that hundreds or thousands of homes are in foreclosure in any locale at any given time, we do not believe that the identity of particular properties that would make sound investments is “generally known” within the meaning of Rule 1.6(a).
New York State EthicsCase Law
Cases applying the broad ABA Model Rules approach have readily extended lawyers’ confidentiality duty to information in the public record.
In In re Anonymous,
The court explained that “Respondent [lawyer] represented an organization that employed ‘AB.’ Respondent became acquainted with AB though this connection. In December 2007, AB and her husband were involved in an altercation to which the police were called, during which, AB’s husband asserted, she threatened to harm him.”
The court rejected the lawyer’s argument that the information was not confidential because it was in the public record: “There is no evidence that this information was contained in any public record. Moreover, the Rules contain no exception allowing revelation of information relating to a representation even if a diligent researcher could unearth it through public sources.”
In Bd. of Attorneys Prof’l Responsibility v. Harman (In re Harman),
The court explained that the lawyer obtained the prospective client’s medical file from her former lawyer, and later used it to help her boyfriend defend a claim by the prospective client. The court stated:
Attorney Harman contends that the referee erred in refusing to allow into evidence two documents he claims would have established that S.W.’s medical records that he released were, in fact, public records and therefore S.W. could not claim any privilege with respect to their release. … We reject this argument because, as the Board correctly argues in its response, it is irrelevant whether S.W.’s medical records were confidential medical records. … Regardless of whether S.W.’s medical records lost their “confidentiality” because they had been made part of the Wood County medical malpractice action, the fact remains that Attorney Harman obtained those records while he was representing S.W. and he then disseminated those records without her consent.
Conclusion
The ABA ethics rules have continually expanded the source of information that can be protected by lawyers’ confidentiality duty.
The 1908 and 1937 ABA Canons focused on information lawyers obtained from their clients. The 1969 ABA Model Code seemed to have taken the same approach, but a reference in an Ethical Consideration apparently signaled a broader reach. The ABA Model Rules explicitly cover information “relating to a representation,” regardless of its source.
Several authors have noted the illogical and unreasonable reach of the ABA Model Rules approach, and concluded that bars must bring some common sense to bear in the disciplinary process.
Following agency principles, the Restatement takes what seems like a more logical approach—excluding from lawyers’ duty of confidentiality generally known information. Among other states, New York deliberately chose this approach when amending its ethics rules in 2009.
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