Every ABA ethics rules’ variation and every state’s ethics rules confirm that lawyers’ confidentiality duty lasts beyond the attorney-client relationship. After that, the issue becomes more subtle.
ABA Canons
The original 1908 ABA Canon warned about the disqualifying impact of confidential information, but did not provide any useful guidance about what a lawyer could or could not do with client information after the representation ended:
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). The 1928 ABA Canons (amended in 1937) emphasized lawyers’ duty to maintain former clients’ confidences, without providing much explanation:
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). Thus, the 1938 ABA Canon specifically addressing confidentiality did not provide any more useful guidance than the earlier 1908 Canon.ABA Model Code
The 1969 ABA Model Code did not distinguish between lawyers’ confidentiality duty to current and former clients:
[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, This provision presumably applied to both current and former clients. A comment indicated that “no employment should be accepted that might require” disclosure “of the confidences and secrets of one client to another.” ABA Model Code Canon 4,
A 1936 ABA ethics opinion explained that
an attorney must not accept professional employment against a client or a former client which will, or even may, require him to use confidential information obtained by the attorney in the course of his professional relations with such client regarding the subject matter of the employment.
The only ABA Model Code provision specifically addressing former clients dealt with lawyers’ duty to protect former clients’ confidences and secrets when the lawyers retired:
A lawyer should also provide for the protection of the confidences and secrets of his client following the termination of the practice of the lawyer, whether termination is due to death, disability, or retirement. For example, a lawyer might provide for the personal papers of the client to be returned to him and for the papers of the lawyer to be delivered to another lawyer or to be destroyed. In determining the method of disposition, the instructions and wishes of the client should be a dominant consideration.
ABA Model Code of Professional Responsibility,Thus, like the earlier ABA Canons, the ABA Model Code treated current and former clients essentially the same way. This made sense in the context of its general approach—prohibiting disclosure or use of client information only if it would disadvantage the client (or former client).
ABA Model Rules
The ABA Model Rules articulate a dramatically different scope of duty from the ABA Model Code, and therefore had to fine-tune lawyers’ confidentiality duty to former clients.
Unlike the ABA Model Code, the ABA Model Rules protect all “information relating to a representation.”
Given the ABA Model Rules’ expanded source and content of information subject to lawyers’ confidentiality duty, it is not surprising that the Rules could not automatically apply that duty to former clients.
Instead, the ABA Model Rules continue forever the prohibition on disclosure of client information, but permit the use of client information, as long as the client would not be disadvantaged. And lawyers may use information even adverse to the former client if it has become “generally known.”
A comment to the main ABA Model Rule dealing with confidentiality confirms that “[t]he duty of confidentiality continues after the client-lawyer relationship has terminated.”
Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented.
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Thus, under
A comment provides some explanation:
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. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.
Restatement
The Restatement (Third) of the Law Governing Lawyers (2000) ultimately takes essentially the same approach as the ABA Model Rules, although it starts in a far different place.
The Restatement uses the “generally known” standard in defining lawyers’ basic confidentiality duty in all circumstances—allowing lawyers to disclose and use generally known information even if they acquire it in connection with a current representation. See Restatement (Third) of the Law Governing Lawyers §59.
A comment to that basic section discusses a particular kind of information that lawyers can use in future representations that are adverse to a former client—even though lawyers’ duties to former clients appears in another Restatement section:
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 (emphasis added). This is not a surprising principle. The ABA Model Rules might recognize the same concept, under the provision allowing use of “generally known” information adverse to a former client.The main Restatement provision dealing with disclosure or use of protected client information explicitly indicates that the prohibition on lawyers’ disclosure or use of protected client information in the defined way applies “during and after representation of a client.” Restatement (Third) of the Law Governing Lawyers §60 (emphasis added). However, most of that section’s discussion deals with the information, and not specifically with lawyers’ duty of confidentiality to former clients.
Another comment deals specifically with lawyers’ use of information after a representation ends:
Even if a subsequent representation does not involve the same or a substantially related matter, a lawyer may not disclose or use confidential information of a former client in violation of §60.
Restatement (Third) of the Law Governing Lawyers §132 cmt. f.The Restatement‘s analysis of lawyers’ confidentiality duty to former clients necessarily involves a simpler approach than that in the ABA Model Rules. The Restatement: (1) never protects “generally known” information; and (2) allows disclosure of client information if a disclosure would not disadvantage the client. The Restatement takes the same approach to current and former clients, and therefore essentially matches up with the ABA Model Rules approach to former clients.
The Restatement approach parallels the description of an agent’s duties to former principals articulated in the Restatement (Second) of the Law of Agency (1958):
Unless otherwise agreed, after the termination of the agency, the agent:
(a) has no duty not to compete with the principal;
(b) has a duty to the principal not to use or to disclose to third persons, on his own account or on account of others, in competition with the principal or to his injury, trade secrets, written lists of names, or other similar confidential matters given to him only for the principal’s use or acquired by the agent in violation of duty. The agent is entitled to use general information concerning the method of business of the principal and the names of the customer retained in his memory, if not acquired in violation of his duty as agent.
Restatement (Second) of the Law of Agency §396(a)-(b).State Variations
Most states generally follow the ABA Model Rules approach.
States unanimously agree that lawyers’ confidentiality duty survives the end of an attorney-client relationship. States following the ABA Model Rules also agree that lawyers may never disclose former clients’ protected information, but may use “generally known” information adverse to a former client, as long as the lawyer is not prohibited by other rules from taking a matter adverse to the former client.
Of course, those few states following the “generally known” standard for all client information end up in the same place when applying that general approach to lawyers’ possible disclosure or use of former clients’ confidences.
Case Law and Ethics Opinions
ABA Opinion 00-417
In 2000, the ABA issued an ethics opinion concerning lawyers’ confidentiality duty to former clients.
ABA Formal Ethics
The Committee has been asked whether, under the ABA Model Rules of Professional Conduct, a lawyer representing a party in a controversy may agree to a proposal by opposing counsel that settlement of the matter be conditioned on the lawyer not using any of the information learned during the current representation in any future representation against the same opposing party. The proposed settlement would be favorable to the lawyer’s client. The Committee notes that, while this particular situation is most likely to arise in litigation, it could also arise in transactional matters.
The committee concluded that the proposed limitation would amount to a restriction on the lawyer’s practice:
In this case, the proposed settlement provision would not be a direct ban on any future representation. Rather, it would forbid the lawyer from using information learned during the representation of the current client in any future representations against this defendant. As a practical matter, however, this proposed limitation effectively would bar the lawyer from future representations because the lawyer’s inability to use certain information may materially limit his representation of the future client and, further, may adversely affect that representation.
The opinion explains the difference between a permissible restriction on the lawyer’s disclosure of client confidences and an impermissible restriction on the lawyer’s use of client confidences:
A proposed settlement provision, agreed to by the client, that prohibits the lawyer from disclosing information relating to the representation is no more than what is required by the Model Rules absent client consent, and does not necessarily limit the lawyer’s future practice in the matter accomplished by a restriction on the use of information relating to the opposing party in the matter. Thus, Rule 5.6(b) would not proscribe offering or agreeing to a nondisclosure provision.
Although the Model Rules also place a restraint on the “use” of information relating to the former client’s representation, it applied only to use of the information to the disadvantage of the former client. Even in this circumstance, the prohibition does not apply when the information has become generally known or when the limited exceptions of Rule 1.6 or 3.3 (Candor Towards the Tribunal) apply. This prohibition has been interpreted to mean that a lawyer may not use confidential information against a former client to advance the lawyer’s own interests, or advance the interests of another client adverse to the interests of the former client. If these circumstances are not applicable, using information acquired in a former representation in a later representation is not a violation of Rule 1.9(c). Thus, from a policy point of view, the subsequent use of information relating to the representation of a former client is treated quite liberally as compared to restrictions regarding disclosure of client information.
(Footnotes omitted; emphases added). Accordingly, the committee advised that
[a]lthough a lawyer may participate in a settlement agreement that prohibits him from revealing information relating to the representation of his client, the lawyer may not participate or comply with a settlement agreement that would prevent him from using information gained during the representation in later representations against the opposing party, or a related party, except to the limited extent described above. An agreement not to use information learned during the representation would effectively restrict the lawyer’s right to practice and hence would violate Rule 5.6(b).
It is unclear whether the ABA meant to totally prohibit lawyers’ use of a former client’s protected information to advance the lawyers’ own interests under any circumstance, or only prohibit self-use of former clients’ information if that use is adverse to the former clients’ interests. The punctuation in that sentence seems to take the former position, although the rule itself seems more consistent with the latter interpretation.
‘Generally Known’
Several cases have addressed the “generally known” standard. It is not surprising that these cases arise in a former client context, because only a handful of states use the “generally known” standard in defining the scope of lawyers’ confidentiality duty in the context of current clients.
In any event, several cases have provided a fascinating analysis of the “generally known” standard.
Sobel v. Sells (In re Gordon Props., LLC), 2013 BL 50210, No. 09-18086-RGM (Bankr. E.D. Va. Feb. 25, 2013), analyzed the “generally known” standard under Rule 1.9, and ultimately disqualified the law firm Reed Smith under that section. The court stated:
A lawyer may not disclose privileged or secret information and may not use case-related information to the disadvantage of his client unless it has become “generally known.” Rule 1.9(c)(1). … “Generally known” does not mean information that someone can find. It means information that is already generally known. For example, a lawyer may have drafted a property settlement agreement in a divorce case and it may in a case file in the courthouse where anyone could go, find it and read it. It is not “generally known.” In some divorce cases, the property settlement agreement may become generally known, for example, in a case involving a celebrity, because the terms appear on the front page of the tabloids. “Generally known” does not require publication on the front page of a tabloid, but it is more than merely sitting in a file in the courthouse. See Virginia State Bar Legal Ethics
In Disciplinary Counsel v. Cicero,
The court stated:
We agree with the board that relator has proved by clear and convincing evidence that Rife was a prospective client of Cicero. As the panel found, the two discussed the possibility of a client-lawyer relationship; Cicero admitted this in his e-mails to Tressel, and Rife testified as to the discussion. Rife’s testimony was corroborated by Palmer [the lawyer ultimately hired by Rife], who testified that Rife had told him soon after the meeting with Cicero that Cicero had quoted him a fee. Rife met with Cicero on April 15 to discuss his case, and Cicero offered legal advice in response to Rife’s questions.
…
In his objections to the board’s report, Cicero argues that the information he communicated to Tressel was “generally known” and that the communication was therefore permitted by Prof. Cond. R. 1.9(c)(1). A close examination of the April 16 e-mails, however, reveals that Cicero disclosed not only generally known information—for example, that Rife’s home had been raided by federal agents—but also a number of specific details about Rife’s case that Cicero could only have learned during his consultation with Rife. This information does not fall into the “generally known” exception of Prof. Cond. R. 1.9(c)(1). Cicero violated Prof. Cond. R. 1.18(b) when he disclosed to Tressel confidential information about Rife’s case learned during the April 15 meeting.
(Emphases added.)A 1993 Eastern District of Pennsylvania case addressed this issue before the dawn of the electronic age.
Cohen v. Wolgin, Civ. No. 87-2007 (E.D. Pa. June 23, 1993), examined whether information is “generally known” for purposes of determining whether a lawyer can use a former client’s information adverse to that client.
The court explained that information in magazines, newspapers and published cases was “generally known,” and concluded that even an old magazine article met the standard:
Anyone interested in finding out about defendant Jack L. Wolgin could go to a public library and discover the article by using public indexes such as the Readers’ Guide to Periodic Literature. The newspaper articles cited by the plaintiff could be discovered in the same fashion. Conducting such a search would not require special knowledge or substantial difficulty or expense.
(Emphasis added.) Furthermore, the court explained that older cases also met the standard:
While that information could not be located in a publicly accessible index such as the Readers’ Guide to Periodic Literature, it could be obtained from a computer database such a[s] Westlaw or Lexis simply by using defendant Jack L. Wolgin’s name. Yet, it is certainly possible that an individual not learned in legal research techniques would not know of the existence of the computer databases that could assist him. For this reason, finding the Third Circuit cases would not be as easy as locating the articles published in the press. However, the court is not convinced that knowledge of the existence of those databases is “special knowledge.”
And information in pleadings and exhibits also met the standard, the court said:
Whether the information contained in the pleadings and exhibits filed in, or the testimony given in, or any settlement agreements reached in the previous litigation involving HRA in state and federal court is generally known, is a more difficult question. It is certainly true that, as the previous litigation in the Eastern District of Pennsylvania, any pleadings filed are accessible to the public simply by going to the clerk’s office and requesting that copies be made. While access to these pleadings might entail some cost, the court does not believe that the copying costs charged by the clerk’s office would constitute a substantial expense. In any event, the parties have not argued that the copying costs are a substantial expense and would be a reason to determine that the information contained in pleadings is not “generally known”. Further, since the pleadings are accessible to the public upon demand, it is concluded that any information that is contained in the pleadings filed in prior state or federal litigation regarding Hotel Rittenhouse Association (“HRA”) is “generally known”.
(Footnote omitted; emphasis added).On the other hand, the court concluded that “information about the Italian Bond Recovery that the plaintiff asserts could have been acquired from the Italian Embassy in Philadelphia, the American Embassy in Italy, or the Italian court in which the litigation that was the subject matter of the recovery was filed is not ‘generally known’.” (Emphasis added).
The rise of social media and easily accessible public records presumably reshape this “generally known” standard—providing another example of how new forms of electronic communication affect the ethics rules and their application.
Conclusion
The ABA Code of Professional Responsibility treated lawyers’ duty of confidentiality to current and former clients exactly the same way.
The ABA Model Rules of Professional Conduct cannot take that approach, given the remarkable breadth of lawyers’ confidentiality duty in the Model Rules.
However, it seems strange that the ABA Model Rules did not adopt the ABA Model Code’s approach—prohibiting lawyers’ use of former clients’ information to their disadvantage. Instead, the ABA Model Rules allows such adverse use, but only if the information is “generally known.”
That concept appears in the Restatement, but the ABA Model Rules inexplicably focus on the type of information rather than on the effect of its use on former clients. The Model Rules’ approach seems inconsistent with the otherwise client-centric (and in some provisions the unjustifiably extreme client-centric) approach found elsewhere in those rules.
Like the ABA Model Code, the Restatement treats lawyers’ confidentiality duty to current and former clients the same, which seems more intellectually consistent than the ABA Model Rules’ differing standards.
CONFIDENTIALITY: A FINAL OBSERVATION
Given the core nature of lawyers’ confidentiality duty, one might think the pertinent ethics rules would be relatively stable over the years, and universally accepted by states and authorities.
However, there have been wild swings in the scope of our confidentiality duty, and states continue to take completely divergent views of what information lawyers must protect.
Everyone recognizes that the ABA Model Rules simply cannot be enforced as they are written. Instead, disciplinary authorities seem to apply the common sense approach articulated in the ABA Model Code, rather than in the newer ABA Model Rules. That alone is a sad commentary on America’s last self-governing profession.
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