Attorney-Client Relationship and Confidentiality
This domain tests when a lawyer-client relationship arises, how far the Rule 1.6 duty of confidentiality reaches, and how that duty differs from the evidentiary privilege. Most lost marks come from candidates who use 'confidential' and 'privileged' as if they were the same thing.
Formation and scope
A relationship forms by consent, express or implied; no writing, fee, or engagement letter is required. A person who reasonably consults a lawyer about possibly retaining one is a prospective client under Rule 1.18. For an organizational client under Rule 1.13, the duty runs to the entity, not to its officers, employees, or shareholders; if a constituent's interests collide with the entity's, the lawyer must explain the conflict and may not represent both.
What Rule 1.6 covers
Rule 1.6(a) reaches all information relating to the representation, whatever its source and whether or not it is privileged. The duty survives termination and the client's death. Rule 1.6(b) lists permissive exceptions: informed consent; implied authorization to carry out the representation; establishing a claim or defense in a dispute with the client; complying with a court order or other law; obtaining ethics advice; detecting conflicts created by a lawyer's change of firm; preventing reasonably certain death or substantial bodily harm; and preventing or rectifying substantial financial loss from a client's crime or fraud in which the lawyer's services were used. Rule 1.6(c) adds a preventive duty to make reasonable efforts against inadvertent disclosure.
Worked example
An engineer emails the company's in-house counsel about a leak, and the company later sues its supplier. At deposition, opposing counsel asks whether any internal report exists. The email relates to the representation, so Rule 1.6 protects it; it is also likely privileged as a confidential communication to a lawyer for the purpose of legal advice. The lawyer may not volunteer it, must assert applicable privilege, and must not make an affirmative false statement about it, because Rule 3.3 governs candor. If the client authorizes disclosure, obtain informed consent confirmed in writing.
Traps
- Privilege protects communications against compelled testimony; Rule 1.6 protects information, including non-privileged facts.
- Rule 1.6(b)(1) requires death or substantial bodily harm, not reputational or economic harm.
- The duty does not end when the matter closes or the client dies.
- Sanitized hypotheticals still violate 1.6 if the listener can identify the client.
- Rule 1.6(a) also bars using information to the client's disadvantage.