Speaking of Ethics: A Primer on Confidentiality, Part 1
From Washington Lawyer, January 2001
By Susan D. Gilbert
There are several ethics issues about which the Legal Ethics Committee and its staff are regularly asked questions. Confidentiality of information is one of these issues. In particular, we are often asked what information is protected by the D.C. Rules of Professional Conduct and when a lawyer is permitted to disclose this information.
Judging from these inquiries, it appears that a brief primer on D.C. Rule 1.6 is in order. Committee Opinion 299 (2000), which deals with a lawyer’s continuing duty of confidentiality to a defunct corporate client, demonstrates the seemingly endless array of factual scenarios that have given rise to nearly 60 committee opinions interpreting Rule 1.6 and its predecessor Code of Professional Responsibility provision, DR 4-101. (Rule 1.6 continues DR 4-101 nearly verbatim and significantly expands the rule and its accompanying commentary.)
We start with the basic premise that Rule 1.6 protects a client’s confidences and secrets from knowing disclosure by the lawyer or from use of the information either to the client’s disadvantage or to the advantage of a third party. Inquirers rarely question the purposes served by the rule, that is, encouragement to seek counsel, development of facts essential to the representation, and candid communication between lawyer and client, even as to embarrassing or legally damaging subject matter. See Comments -.
However, problems can develop when a lawyer must determine whether information is, in fact, protected by the rule. Rule 1.6(b) defines confidence as "information protected by the attorney-client privilege under applicable law"-a fairly finite definition. However, the definition of secret is more fluid and is significantly broader in reach: "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."
It is figuring out the scope of "secret" that is often problematic for lawyers. For example, in Opinion 124 (1983) a lawyer asked whether he could reveal client identities to the Internal Revenue Service (IRS) or if the fact of representation itself was protected information that could not be divulged. The committee concluded that, as to those clients who had requested protection of their identities, such information was protected from the lawyer’s voluntary disclosure. Similarly, in Opinion 214 (1990) the committee concluded that, absent client consent, a client’s name could not be divulged on an IRS form where to do so would be to the client’s detriment. See also Opinion 266 (1996) (client’s whereabouts may be a "confidence" where disclosure would be detrimental to the client).
Nonetheless, legal knowledge gained or theories developed while working for a client or firm generally do not constitute secrets. Thus, in Opinion 175 (1986) the committee determined that a legal theory, "whether novel or not," is not "information" falling within the definition of secret. In that instance a lawyer who changed firms was permitted to use theories developed at the first firm in a subsequent, unrelated representation. Opinion 217 (1991) also distinguishes between a "body of knowledge" that a lawyer learns from experience from specific knowledge about a particular party’s actions in a given matter, which likely is protected.
The duty of confidentiality extends so deeply that it may be found to exist in unlikely circumstances. For example, in Opinion 99 (1981) the existence of the lawyer-client relationship was itself unclear, and the inquiring lawyer was unclear whether statements made to him were either a confidence or a secret under the rule. In this circumstance the committee advised that where "there is a colorable basis for asserting that the statements were made in the course of an attorney/client relationship, the lawyer must resolve the question in favor of the existence of that relationship and in favor of preserving the confidentiality of the disclosures." (Emphasis added) So, too, the committee drew a fine line in Opinion 186 (1987), when it prevented a lawyer from disclosing information "gained in the professional relationship," despite the fact that others had publicly disseminated the same information. See Rule 1.6, Comment . See Rule 1.6, Comment , which states in part, "The rule of client-lawyer confidentiality applies … to all information gained in the course of the professional relationship … without regard to … the fact that others share the knowledge. It reflects … the lawyer’s duty of loyalty to the client."
Furthermore, the duty of confidentiality may attach even though a lawyer-client relationship is never established. As Comment  notes, "Although most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so, the duty of confidentiality imposed by this rule attaches when the lawyer agrees to consider whether a client-lawyer relationship shall be established." (Emphasis added) Citing this comment, the committee, in Opinion 275 (1997), determined that a law firm could not use information divulged to it by a potential client where the person had requested that the information be kept confidential.
Finally, a lawyer’s obligation to maintain a client’s confidences and secrets is a lasting obligation. Thus, Rule 1.6(f) provides that "[t]he lawyer’s obligation to preserve the client’s confidences and secrets continues after termination of the lawyer’s employment." Obviously, the rule applies to terminations for whatever reason: the representation has concluded, the lawyer has changed law firms, or the lawyer and client no longer see eye to eye and have parted ways.
Whatever the reason, Rule 1.6(f) obligates the lawyer to protect any confidences and secrets he or she may have gained during the relationship. In some instances a lawyer possessing this knowledge may need the former client’s consent to undertake a new representation. See Rule 1.9 (Former Client Conflict). But what happens when the client dies and consent cannot be obtained? Perhaps the best-known example of this situation is Swidler & Berlin v. United States, 524 U.S. 399 (1998), where the Court held that the attorney-client privilege generally survives the client’s death.
In Opinion 299 (2000) the committee addressed the same issue, albeit in the context of a lawyer’s continuing obligations after a former corporate client has gone out of business. Unless one of the exceptions to the rule applied, the committee advised, the corporation’s lawyers could not divulge the requested information.
This primer will continue in the March issue of The Washington Lawyer with a discussion of the exceptions to Rule 1.6.
Ethics counsel Susan D. Gilbert and Ernest T. Lindberg are available for telephone inquiries at 202-737-4700, ext. 231 and 232.