Client Confidentiality
The duty and its breadth
Rule 1.6 bars revealing information relating to the representation. It is broader than the attorney-client privilege: it covers all information gained in the professional relationship, whatever its source, and it survives the end of the representation. Privilege protects only confidential communications made to obtain legal advice and can be waived; confidentiality is an ongoing ethical duty owed to the client. Related obligations: Rule 1.9(c) (former clients), Rule 1.8(b) (no use of client information to the client's disadvantage), and Rule 4.4(b) (notify the sender of inadvertently produced documents).
Exceptions are permissive
The lawyer may reveal information, limited to what is necessary, to:
- prevent reasonably certain death or substantial bodily harm;
- prevent a client's crime or fraud reasonably certain to cause substantial financial injury to another, in furtherance of which the lawyer's services were used;
- prevent, mitigate, or rectify such financial injury;
- obtain ethics advice;
- establish a claim or defense in a dispute with the client, or respond to allegations;
- comply with law or a court order.
Disclosure is generally permitted, not required. The exception is when another rule commands candor, chiefly Rule 3.3, which overrides 1.6.
Traps
Candidates assume disclosure of a future crime is mandatory; forget that the crime-fraud exception requires that the lawyer's services were used in the fraud; assume the duty ends with the representation; or confuse privilege with confidentiality.
Worked example
A client admits she shredded documents before hiring the lawyer for an unrelated matter. The lawyer's services were not used in the fraud, and no rule requires disclosure; she may not reveal the information. If she later discovers the client intends to testify falsely, Rule 3.3 governs and can require remedial steps.