Gateways to Disclosure

Rule 1.6(a) makes silence the default and opens three doors out of it: a lawyer may reveal information relating to the representation of a client only if the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or paragraph (b) permits it.¹ The three doors stand on two different foundations, and the foundation fixes how far each one opens.

The first two doors come from the client. Because the information is the client’s to protect, the client can lift the duty, expressly under informed consent and by inference under implied authorization, and each door opens only as far as that choice reaches. Paragraph (b) comes from outside the client. It matters when the client has not agreed and may well object, so its justification must be a competing interest weighty enough to override silence, and the rule confines it to a short list of circumstances.

Each gateway raises its own working question. Informed consent asks what the client was told. Implied authorization asks what the client would want. Paragraph (b) asks which listed exception fits and how much it allows.

Informed consent is the cleanest gateway because it rests on the person the duty protects. Rule 1.6(a) allows disclosure when “the client gives informed consent,” and the weight falls on the adjective.² Rule 1.0(e) defines informed consent as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”³ A client’s yes opens the gateway only when it follows that explanation, so the usual question is not whether the client agreed but whether the agreement was informed.

The definition has three working parts. The client agrees to a “proposed course of conduct,” which here means the particular disclosure the lawyer has described, so the consent reaches that disclosure and nothing wider. The lawyer must explain the material risks, because a client who has not heard what disclosure could cost is guessing rather than choosing. The lawyer must also explain the reasonably available alternatives, because a client who hears only about disclosure cannot compare it with silence or with a narrower disclosure. Students remember the risks and forget the alternatives; the definition demands both. The Model Rules use the term so often that they define it once, and the same pairing governs wherever it appears.⁴

How much explanation is enough depends on what is at stake. When a disclosure appears innocuous and the client already understands the information and the effect of revealing it, little explanation may be required; when the information is of greater value, or the consequences of release are likely to be significant, the lawyer’s explanation appropriately grows more extensive.⁵ The scaling follows from the purpose of the explanation, which is to show the client what could go wrong. Where little can go wrong and the client already sees it, a long speech only delays the work. Where a great deal can go wrong, a short exchange leaves the client agreeing to risks nobody described.

Hypothetical Illustration

A lawyer negotiating a loan for a client learns that the lender will ask whether the client is under investigation, and the client is. Before revealing anything, the lawyer tells the client that the lender may call the loan or raise its price once it hears this, that the lender could pass the news along, and that the client could instead delay the loan, look for another lender, or offer a narrower statement under a confidentiality agreement. The client weighs those points and tells the lawyer to go ahead. The stakes are high, and the lawyer explained both the risks and the alternatives of that specific disclosure, so the consent is informed and the disclosure is permitted.

A week later the lawyer asks the same client whether the court clerk may be told that the client will arrive late for a Tuesday hearing. One sentence of explanation is enough, because the risk is slight and the client already sees it, and her quick yes is informed consent to that disclosure.

Informed consent requires full disclosure to the client of the risks of revealing the confidential information, so a stem that reports only that the client said it was fine has not reported informed consent.⁶ Suppose that in the lender scene the lawyer had told the client only that the lender wanted some background, and the client had answered that the lawyer should do whatever helps. That answer is an agreement without the explanation that makes it informed. The risk that the lender would call the loan and the option of staying silent never reached the client, so the gateway stays closed and the disclosure would violate Rule 1.6(a).

The same demand for advance explanation appears when one lawyer serves two clients. Suppose a company retains a lawyer to obtain a work visa for a noncitizen engineer, the lawyer comes to represent both, and no one discusses confidentiality at the outset. The engineer later mentions that he plans to start his own firm. Rule 1.4 requires the lawyer to “keep the client reasonably informed about the status of the matter,” which seems to point toward telling the company, yet the engineer’s statement is information relating to his representation and he has agreed to nothing.⁷ The lawyer cannot reveal it to the company, even though the lawyer owes the company a duty to keep it informed.

The lawyer could have avoided the bind by asking first. The conflicts rule calls for each affected client’s informed consent, confirmed in writing, and the time to obtain it is the start of the dual representation.⁸ When the conflict surfaces without that consent, the lawyer may be forced to withdraw, and must withdraw from both clients if the lawyer cannot use independent judgment for each or cannot assure each that confidences will not be breached. The lawyer might try to obtain consent after the conflict arises, but the duties of loyalty and confidentiality will often make that nearly impossible.⁹ The writing requirement comes from the conflicts rule; the text of Rule 1.6(a) mentions none, though a lawyer relying on informed consent will want a record of what was explained and agreed. Whether the joint representation is permissible at all is a conflicts question.

Informed consent also matters when a lawyer learns of another lawyer’s misconduct. Rule 8.3(a) codifies a reporting duty, but the duty reaches only violations the reporting lawyer truly knows of rather than suspects, only episodes that raise serious questions about the other lawyer’s fitness to practice, and it does not override the duty to maintain client confidences.¹⁰ A lawyer who learned of the misconduct through a client therefore needs a gateway before reporting, and the client’s informed consent is the most direct one.

Implied Authorization

Implied authorization solves a problem that informed consent cannot. Consent suits a particular disclosure the lawyer can describe in advance, but a representation is built from hundreds of small communications with courts, opposing parties, buyers, and colleagues, and nearly every one reveals something about the client’s affairs. A lawyer who needed an explained consent for each would accomplish nothing. Rule 1.6(a) therefore treats the engagement itself as standing authorization for disclosures that are “impliedly authorized in order to carry out the representation.”¹²

The idea comes from agency law. The client determines the objectives of the representation after consulting the lawyer, and the lawyer then proceeds in a manner reasonably calculated to advance the client’s lawful objectives.¹³ The Restatement phrases the test as what the lawyer “reasonably believes” will “advance the interests of the client in the representation.”¹⁴ Two features matter. The test measures the disclosure against the client’s objectives, not the lawyer’s preferences, and it turns on the lawyer’s reasonable belief, so a disclosure the lawyer sincerely but unreasonably thought helpful earns no protection.

A landowner who retains a lawyer to negotiate the sale of a parcel has handed over information that is plainly confidential, yet when the lawyer finds a prospective buyer the lawyer has to say something like “this land is for sale.”¹⁵ The client’s objective is the sale, and telling a buyer that the land is available is calculated to advance it, so the statement is impliedly authorized without any conversation about disclosure. The same sale shows where the authorization stops.

The comments to Rule 1.6 give two further examples of the same inference. A lawyer may be impliedly authorized “to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter.”¹⁶ Denying a fact that the documents establish gains the client nothing, so conceding it serves the client’s position in the case. A statement that opens a path to settlement serves the objective of ending the dispute on acceptable terms.

Information also moves among lawyers inside a firm without a separate consent. Sharing with colleagues as needed to carry out the representation, and to let the firm meet obligations such as maintaining a process to check for conflicts of interest, is a familiar application of the same inference.¹⁷ The client hired a firm, and a firm works through colleagues, so a client who expects the matter to be staffed expects the file to circulate among the staff. That expectation is an inference, and the inference runs from the client’s objectives, so it gives way to what the client actually says.¹⁸

The price of skipping an explained consent is a narrower reach. Implied authorization covers only what carrying out the representation requires, and the lawyer should stay in regular communication with the client so as not to overstep the bounds.¹⁹

A provision on protective action shows the same ceiling in the rule’s own words. When the lawyer takes protective action under its paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.²⁰

Permitted by Paragraph (b)

The third gateway sends the lawyer to paragraph (b), and its opening words carry most of what the gateway means: a lawyer “may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary,” followed by a list.²² Three phrases do separate work. “May” makes disclosure a permission rather than a command. “Reasonably believes necessary” sets the standard against which the lawyer’s judgment will be tested. “To the extent” caps how much the lawyer may say.

The list covers, in summary, preventing reasonably certain death or substantial bodily harm; preventing, rectifying, or mitigating the consequences of frauds for which the lawyer’s services were used; obtaining advice on compliance with the rules of professional conduct; self-defense; complying with law or a court order; and detecting and resolving conflicts of interest.²³ Each exception has its own elements. This section covers how the gateway as a whole works.

Paragraph (b) stands on different footing from the other two gateways. Informed consent and implied authorization both trace back to the client’s choice, stated or inferred, but paragraph (b) matters when the client has not agreed and may object, so its justification has to come from a competing interest serious enough to outweigh the client’s interest in silence, such as a threat to someone’s life. Because the rule overrides the client’s silence on the strength of that interest, it limits the override to the listed circumstances, and the presumption against disclosure still stands even where an exception applies.²⁴ The exceptions give no roving warrant to reveal information whenever a lawyer decides that disclosure would help the client or someone else, and they do not turn the lawyer into a judge against the client’s interests.²⁵

The narrowness protects the flow of information that the whole duty exists to secure. If enlarged exceptions diminish the flow of information from clients, lawyers lose the information they need to represent and counsel clients well, and the public-interest purpose the exceptions serve is defeated as well.²⁶ That risk is the reason to read the list narrowly.

The word “may” does as much work as “necessary.” In the Model Rules and in most states, the Rule 1.6(b) exceptions are permissive, not mandatory: an attorney may disclose but need not, and either way will not be subject to discipline.²⁷ Silence therefore stays available to a lawyer who prefers it after thinking the matter through, whereas a command would turn every exception into a reporting duty and give clients a stronger reason to hold back. A stem in which a lawyer stays silent although an exception was available describes no violation under the Model Rules. A stem in which a lawyer speaks outside the list, or beyond what an exception permits, describes one unless another gateway is open.

The bodily-harm exception shows the reasonable-belief standard at work. It lets a lawyer reveal information to prevent reasonably certain death or substantial bodily harm,²⁸ so the exception sets its own threshold of reasonably certain serious harm on top of the lead-in’s requirement that the lawyer reasonably believe disclosure necessary to prevent it.²⁹ In McClure v. Thompson, the district court found that the lawyer reasonably believed the children might still be alive, and on that footing the Ninth Circuit concluded that the disclosure fell within the bodily-harm exception.³⁰

The limit bites in the other direction when an exception plainly applies and the lawyer reaches past it. The extent of disclosure under the exceptions is limited to what the lawyer reasonably believes necessary to accomplish the exception’s purpose, and over-disclosure can subject a lawyer to discipline.³¹

Because the decision rests on the lawyer’s own reasonable judgment, and a misjudgment carries discipline, the sensible course in all but emergencies is to consult other well-regarded lawyers before disclosing a client’s information without consent and against the client’s interests. The rule expressly authorizes a lawyer to reveal information to secure another lawyer’s advice about compliance with the rules, so the consultation does not itself breach the duty.³² The consultation also tests the standard the lead-in sets, since reasonable belief unlocks the gateway and sincere conviction alone does not, and a second opinion shows whether the belief would look reasonable to others.

Among the three gateways, paragraph (b) is the one that operates without the client’s agreement, and it therefore carries the most conditions. When a fact pattern shows a lawyer revealing information with neither consent nor implied authorization, turn to paragraph (b) and test three things: a specific listed purpose, a reasonable belief that disclosure is necessary to serve it, and a disclosure no wider than that purpose requires.