Client-lawyer relationships are fiduciary relationships built on trust. A key part of that trust relationship is maintaining client confidences. The question of when a lawyer may disclose confidential information is a popular topic on our advisory opinion hotline. It has been a few years since this column focused broadly on confidentiality,1 so now is a good time for a refresher.
Confidential information
The first thing to know about client confidentiality is that everything relating to the representation of a client is confidential. This tenet comes from the rule itself—Rule 1.6(a), Minnesota Rules of Professional Conduct (MRPC)—which provides: “Except when permitted under paragraph (b), a lawyer shall not knowingly reveal information relating to the representation of a client.”
Confidentiality is broader than the attorney-client statutory or common law privilege and covers all information “relating to the representation.” Please pause to reflect upon the breadth of that statement. Lawyers are tasked with not revealing information relating to the representation unless an exception in Rule 1.6(b) permits disclosure. Our training tells us we must protect our client’s secrets, but we also need to protect all information relating to the representation, whatever its source, and should take care to disclose only such information as permitted by the rules.
The second thing to know about client confidentiality is that there is no “public records” exception to the confidentiality rule. While there are 11 permissible disclosure situations outlined in Rule 1.6(b), none of those permissions make reference to public records. Many lawyers seem to believe that if something is public, it is not confidential. And before I became the Director, I did not have cause to contemplate this concept either. The rationale is grounded in the fiduciary nature of the relationship. Even though something might not be a secret because it’s a matter of public record, the last thing many clients may wish to see is their lawyer disclosing, discussing, or using that publicly available information. Instead, to facilitate the trust relationship, the confidentiality rule expects us to treat everything with care unless it falls within a permissible disclosure exception.
Disclosure options
The confidentiality rule permits lawyers to disclose confidential information under several circumstances. You should review the permissions listed in Rule 1.6(b) and should always understand how any information you are disclosing about the representation is a permissible disclosure.
First, there are a few client-centered permissions: Rule 1.6(b)(1) permits disclosure if the client gives informed consent. Rule 1.6(b)(2) permits disclosure if the disclosure relates to something that is not privileged, is not embarrassing or detrimental to the client, is not subject to a client request to keep it secret (i.e., inviolate), and Rule 1.6(b)(3) permits disclosure as “impliedly authorized in order to carry out the representation.” These permissions allow the lawyer to use information relating to representation to advance the client’s interest and the legal matter.
There has always been a tension, however, between a client’s desire for their lawyer to keep secrets, on the one hand, and situations where harm to third parties or the legal profession would occur if the lawyer could not speak. Rule 1.6(b) contains several exceptions to allow lawyers to share confidential information in certain situations even if the client has not authorized the disclosure.
For example, Rule 1.6(b)(4) permits a lawyer to disclose confidential information to prevent fraud (if the lawyer’s services are being used to further the fraud) or to prevent the commission of a crime, and Rule 1.6(b)(5) permits disclosure to rectify the consequences of a client’s criminal or fraudulent conduct in instances where the client has used the lawyer’s services to further the fraud or crime. Thus, lawyers need not stand by silently while their client plans to commit a crime or uses their lawyer’s services to commit fraud against another. You may try to dissuade your client from such a course of action, but you should also disclose to your client the limits of the confidentiality obligation and that you can ethically act by disclosing information as necessary to prevent such conduct if the client persists.
Rule 1.6(b)(6) permits disclosure of confidential information if the lawyer reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial bodily harm. If a lawyer reasonably believes this to be the case, the lawyer need not be silent in the face of such significant possible harm.
There are also several exceptions that allow lawyers to disclose information to seek legal advice on their ethics obligations, report misconduct, comply with law or court order, or detect and resolve conflicts. Rule 1.6(b)(7) permits disclosure of confidential information to secure legal advice about the lawyer’s compliance with the ethics rules, which includes calling our Office for a confidential advisory opinion; Rule 1.6(b)(9) permits disclosure to comply with law or court order; and Rule 1.6(b)(10) permits disclosure to comply with a lawyer’s duty to report the misconduct of another lawyer. Rule 1.6(b)(11) permits disclosure to detect and resolve conflicts arising from a change in employment or firm mergers, but only to the extent the revealed information would not compromise the attorneyclient privilege or otherwise prejudice the client.
And there is more. Rule 1.6(b)(8), sometimes called the self-defense exception, permits disclosure where “the lawyer reasonably believes the disclosure is necessary to establish a claim or defense on behalf of the lawyer in an actual or potential controversy between the lawyer and the client, to establish a defense in a civil, criminal, or discipline proceeding against the lawyer based upon the conduct in which the client was involved, or to respond in any proceeding to allegations by the client concerning the lawyer’s representation of the client.”
Caution is recommended when invoking this exception, mainly because such defensive disclosures still must only occur as necessary to establish the defense, and it is always best to pause and reflect before sharing client confidences, particularly when you are doing so to respond to a client claim of misconduct or liability. Lawyers may use this provision to disclose necessary information to file a lawsuit to collect a fee, for example. Or to seek a postrelationship protective order against a client who is engaging in harassing conduct, or to defend against a malpractice claim.
Minnesota has more exceptions than are currently present in the American Bar Association’s model Rule 1.6(b). I believe that in Minnesota we strike a good balance in guarding client confidences without requiring lawyers to stand silent when there are good policy reasons for limited disclosures.
Cautionary tales
Notwithstanding the number of exceptions present in Minnesota’s Rule 1.6(b), lawyers are still annually disciplined for violating Rule 1.6(a)—disclosing information relating to the representation without a qualifying disclosure rule. The circumstances that most frequently give rise to violations are disclosures upon withdrawal from representation, responding to online criticisms by clients, and disclosure of information contained in public records in subsequent proceedings involving former clients. This column has covered the first2 and second3 of these situations in previous articles, so I would like to spend time on the third situation.
Confidentiality obligations survive the termination of the attorney-client relationship. Rule 1.9, MRPC, may allow a lawyer to be adverse to a former client but Rule 1.9(c), MRPC, always restricts the lawyer from using or revealing ”information related to the representation to the disadvantage of the former client” unless a permissible exception in Rule 1.6(b) exists, or with respect to use, only “when the information has become generally known.” Information is not “generally known” simply because it was discussed in open court, is available in court records, or exists in other repositories of public information. Rather, information is “generally known” when it is widely recognized by the public or members of the former client’s industry, profession, or trade.4 Thus, you might not be able to use public records information against a former client in a subsequent representation because of your ongoing obligation of confidentiality to the former client if the information related to the former representation, notwithstanding the fact that it is a matter of public record. These rules have tripped up several attorneys during this past year.
Conclusion
Confidentiality is a bedrock of the lawyer-client relationship. When you are disclosing information relating to a client representation, no matter the source of the information, be sure that you understand the exception(s) in Rule 1.6(b), MRPC, that allow you to disclose information relating to the representation. While there are several exceptions allowing disclosure, unless you are being thoughtful, you may disclose information you were obligated to keep confidential. And do not forget we are here to answer your ethics questions, including how to comply with your confidentiality obligations. We can be reached at 651-296-3952. s
NOTES
1 See e.g., Martin A. Cole, Disclosing Confidential Information, Bench & Bar of Minnesota (April 2012), republished at lprb.mncourts.gov/articles.
2 Susan M. Humiston, Withdrawing as counsel (ethically), Bench & Bar of Minnesota (November 2019).
3 Patrick R. Burns, Client confidentiality and client criticisms, Bench & Bar of Minnesota (December 2016).
4 American Bar Association Formal Opinion 479, The “Generally Known” Exception to Former-Client Confidentiality (12/15/2017).