This article addresses the second element of lawyers’ ethics duty of confidentiality—the time at which the lawyer obtained the information.
ABA Canons
The 1908 ABA Canons of Professional Ethics did not deal with the timing of the lawyer’s acquisition of client “secrets or confidences.” However, Canon 6 seemed focused on the attorney-client relationship, which in turn implied that lawyers’ duty of confidentiality covered information acquired during that relationship—rather than before or after:
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). On July 26, 1928, the ABA adopted an explicit confidentiality canon, which it later amended in September 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) (emphasis added).The reference to “client’s confidences” implied that the lawyer acquired the protected information while there was an attorney-client relationship—although the rule did not explicitly indicate that.
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, That same Disciplinary Rule 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’s reference to “confidence,” which explicitly parallels the attorney-client privilege, seemed to limit the protection to communications occurring during the attorney-client relationship or communications between a prospective client and the lawyer. The definition of “secret” explicitly referred to other information “gained in the professional relationship.” This also seemed to limit lawyers’ confidentiality duty to information gained during the attorney-client relationship—not before or after it.
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].
Interestingly, a comment to the ABA Model Rule governing lawyers’ confidentiality duty to former clients uses the old ABA Model Code formulation.
Paragraph (c) provides that information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client.
Under the current ABA Model Rules approach, lawyers’ confidentiality duty can extend to information the lawyer acquired before a formal attorney-client relationship begins, and even before the client approaches the lawyer to discuss the possibility of establishing such a relationship. Similarly, most bars applying the ABA Model Rules agree that lawyers’ confidentiality duty can even extend to information the lawyer acquires after the attorney-client relationship ends. Despite the literal language of
Thus, the ABA Model Rules do not contain the apparently temporal limiting language of the ABA Model Code. Although the ABA Model Rules’ confidentiality duty does not explicitly cover information the lawyer obtains before or after the attorney-client relationship, the broad horizontal scope of protected information probably signals an equally broad temporal approach.
Comparison of Model Code and Model Rules
An extensive 2009 Nevada legal ethics opinion reads the ABA Model Rules this way:
The [Nevada] Rule [1.6] 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.
Nevada EthicsRestatement
The Restatement (Third) of the Law Governing Lawyers (2000) explicitly adopts a broad temporal approach:
Information acquired during the representation or before or after the representation is confidential so long as it is not generally known . . . and relates to the representation. Such information, for example, might be acquired by the lawyer in considering whether to undertake a representation.
Restatement (Third) of the Law Governing Lawyers §59 cmt. c (emphasis added). The Restatement provides an illustration of protected information the lawyer learns before an attorney-client relationship:
Lawyer represents Employer in defending against a claim of employment discrimination by Plaintiff. Plaintiff has joined both Employer and Personnel Director as defending parties. Lawyer extensively confers with Inside Legal Counsel, general counsel of Employer, who provides information about the claim as it relates to Personnel Director. Subsequently, Inside Legal Counsel authorizes Lawyer to represent Personnel Director as a co-client. Information acquired by Lawyer relating to representation of Personnel Director prior to forming the client-lawyer relationship is confidential client information under this Section.
Restatement (Third) of the Law Governing Lawyers §59 cmt. c, illus. 1. The Restatement also provides an illustration of protected information the lawyer learns after an attorney-client relationship:
Lawyer represented Defendant in civil litigation, in which Defendant prevailed. Two years after the representation ended, a Juror in the case writes a letter to Lawyer stating that Defendant approached Juror and several other jurors in a recess during their deliberations and improperly provided them with new evidence that persuaded the jury to find for Defendant. Juror states in the letter that Juror wishes Lawyer to show the letter to the Judge who presided at the trial. Although not subject to the attorney-client privilege…, the letter relates to Lawyer’s representation of Defendant and is thus confidential under this Section.
Restatement (Third) of the Law Governing Lawyers §59 cmt. c, illus. 2. This Restatement section’s reporter’s note provides the following explanation of this broad temporal approach:
On the time period during which receipt of confidential information about a client is protected, compare
Of course, it is understandable that the Restatement could take such a broad temporal approach to protected client information. Other Restatement provisions prohibit lawyers from disclosing protected information only if the client has asked the lawyer not to disclose it, or if there is a “reasonable prospect that [disclosing or using client information] will adversely affect a material interest of the client.” Restatement (Third) of the Law Governing Lawyers §60(1)(a).
Given this back-end check on lawyers’ disclosure of protected client information (which is absent in the ABA Model Rules), the Restatement can take a broad approach to its definition of protected information without running the risk of irrational overbreadth—which seems apparent in the ABA Model Rules approach.
State Variations
Most states follow the ABA Model Rules approach, which seems to have no temporal limitation.
However, some states still follow a variation of the ABA Model Code approach.
District of Columbia
District of Columbia Rule 1.6(b) explains that “‘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.” (Emphasis added).
Georgia
Georgia Rule 1.6(a) states: “A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client.” (Emphasis added).
North Carolina
North Carolina Rule 1.6(a) provides that “A lawyer shall not reveal information acquired during the professional relationship of the client” (emphasis added). Otherwise it follows the general ABA Model Rules formulation.
Virginia
Virginia Rule 1.6(a) states that “A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or 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 unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.” (Emphasis added).
New York
New York follows its own unique approach, using both the ABA Model Code and the ABA Model Rules approach—which presumably has the effect of taking the latter’s broad view.
New York Rule 1.6(a) and (b) provide:
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.
(Emphasis added). New York State Ethics
A lawyer who handles foreclosure matters in mediation and at trial desires to provide leads on desirable properties to friends in the real estate business. The lawyer must not reveal confidential information to the disadvantage of a client or to the advantage of the lawyer or a third party unless the client gives informed consent. If a reasonable lawyer would perceive a significant risk that the lawyer’s own financial, business, or other personal interests will adversely affect the lawyer’s professional judgment on the client’s behalf, then the lawyer may not continue the representation unless the conflict is consentable and the client gives informed consent, confirmed in writing. In any event, the lawyer may not use litigation tactics that have no substantial purpose other than delay.
According to the opinion, information about properties in foreclosure amounted to protected confidential information:
The first of these multiple criteria is whether the information has been “gained during or relating to the representation of the client….” Here, information about whether properties would be sound investments is plainly “gained during” the representation of the Lender, and is information “relating to” the representation. Only one of these is necessary.
(Emphasis in original indicated by underscore; all other emphasis added).Case Law
A 2010 Indiana case held that information a lawyer acquired from a social acquaintance became retroactively covered by the lawyer’s confidentiality duty when one of the lawyer’s partners began to represent the acquaintance.
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. In January 2008, AB phoned Respondent and told her about her husband’s allegation and that she and her husband had separated.”
AB later hired a lawyer in the same firm to represent her. The court said “In a second phone call that month, AB asked Respondent for a referral to a family law attorney. Respondent gave AB the name of an attorney in Respondent’s firm.” AB and her husband later reconciled.
The respondent lawyer later disclosed in a social setting what she had learned from AB during their conversation before AB hired the lawyer’s firm:
In March or April 2008, Respondent was socializing with two friends, one of whom was also a friend of AB’s. Unaware of AB’s reconciliation with her husband, Respondent told her two friends about AB’s filing for divorce and about her husband’s accusation. Respondent encouraged AB’s friend to contact AB because the friend expressed concern for her. When AB’s friend called AB and told her what Respondent had told him, AB became upset about the revelation of the information and filed a grievance against Respondent.
The court rejected the lawyer’s argument that she had learned the information from AB outside a professional relationship, which meant that the information was not covered by the respondent lawyer’s ethics duty of confidentiality:
Respondent’s revelation of the information at issue was a violation of Rule 1.9(c)(2). Respondent argued to the hearing officer that AB initially gave her the information at issue for the purpose of seeking personal rather than professional advice and only later phoned her again to ask for an attorney referral. Thus, she argued, the information was not confidential when AB first disclosed it to her, subsequent events did not change its nature, and she violated no ethical obligation in later revealing it.
(Emphasis in original indicated by underscore; all other emphasis added). The information became subject to the respondent lawyer’s ethics duty of confidentiality when AB hired a lawyer in her firm, the court said:
The information at issue, however, was disclosed to Respondent not long before the second call in which AB asked for an attorney referral and Respondent recommended an attorney from her firm. At that point, if not before, AB became a prospective client under Rule 1.18. The formation of an attorney-client relationship with Respondent’s firm followed immediately thereafter, and the information at issue was highly relevant to the representation. Respondent then revealed the information with knowledge that her firm had been retained to represent AB in the matter. Under these circumstances, we conclude that once AB became a prospective client, the information became subject to the confidentiality protections of the Rules.
(Emphases added.)Conclusion
As in other areas, the ABA Model Rules take a far broader approach than the ABA Model Code. The ABA Model Rules seem to place no temporal limitation on the information lawyers must maintain as confidential. The Restatement agrees with the ABA Model Rules approach on this issue.
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