Concept
The General Prohibition
Professional obligation of confidentiality—general rule
The Duty of Confidentiality
The General Prohibition
Rule 1.6(a) of the Model Rules of Professional Conduct sets the default for everything a lawyer says about a client: "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)."1 The sentence sets a default of silence with three doors out of it. A lawyer who wants to speak must point to one: the client's informed consent, an implied authorization that the representation itself creates, or an exception listed in paragraph (b). A lawyer who cannot name a door has no permission, however harmless or well-meant the disclosure. The rest of this chapter takes the sentence apart, beginning with what information is protected and ending with the consequences of breach.
Silence is the default because effective representation depends on it. Counsel can help only if the client fully and frankly discloses private information, and the ethics rules make that candor safe by binding lawyers to keep the information private.2 A client who doubted the promise would trim the story, and a lawyer working from a trimmed story would be advising on facts that are not the real ones.
Paragraph (b) is the narrowest door. The discretion the newer exceptions give a lawyer is carefully circumscribed: it allows revealing confidential information without client consent only in cases of necessity, and only to avoid or remedy reasonably certain and significant harm. It is no roving warrant to reveal information as the lawyer sees fit, and it does not make the lawyer a judge against the client's interests. The presumption against disclosure still stands.3
The protection is also broad. The confidentiality label attaches whatever the source of the information, whether or not the client asked for secrecy, and whether or not disclosure would harm the client.4 The lawyer's good intentions therefore play no part in the analysis. Nor does the setting. The duty applies at the office, at a restaurant, at a professional conference, and in legal proceedings alike, so a remark over dinner breaches it just as a remark in a conference room would.5
The Model Rules themselves bind no lawyer until a jurisdiction adopts them, but close analogues of the confidentiality rule are in effect in every U.S. jurisdiction.6 Some states state the duty in even starker terms. California's statute makes it the attorney's duty to "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets of his or her client." (Cal. Bus. & Prof. Code § 6068(e)(1)).7
The same information can be shared lawfully once a gateway opens, and each gateway works differently.
Consent is not the only route. A lawyer retained to sell a parcel of land must tell prospective buyers that the land is for sale. That information is protected, but because the client's objective is to sell, the disclosure is plainly calculated to advance it, and so it is impliedly authorized without any conversation about disclosure.8 The third gateway, paragraph (b), is taken up in its own section below. For now, what matters is that the gateways are distinct routes, and a lawyer must be able to say which one applies before speaking.
Revealing information is not the only way to breach the duty. A lawyer must also refrain from making adverse use of confidential information, a limit that Rule 1.8(b) imposes separately.9
The duty should not be confused with the attorney-client privilege. Evidentiary privileges apply only in legal proceedings, while the ethical duty of confidentiality applies everywhere, and a later section develops the contrast.10