Working Through a Problem

Working Through a Problem

Rule 1.6(a) states the confidentiality duty and also fixes the order in which to analyze it. 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 paragraph (b) permits it.¹ Read left to right, the sentence asks first what the information is, then whether any exit from silence is open. Each question presupposes the one before it. Debating whether a client's consent was informed accomplishes nothing for information the rule does not cover, and searching for a paragraph (b) exception is premature until the lawyer has confirmed that the information is protected. Working in order also guards against a trap discussed after the checklist: letting another rule's demand for disclosure settle a question that confidentiality decides first.

The first two steps are screening questions, and they are easy to rush because their answers usually favor protection. Step one asks only whether the information connects to a matter the lawyer is handling. Step two names the holder of the protection. When that holder is an organization, the exit that most resembles whistleblowing is narrow. Rule 1.13(c) permits disclosure of confidential information in limited circumstances, but only if and to the extent the lawyer reasonably believes necessary to prevent harm to the organization.² That permission does not apply when the lawyer was retained to investigate possible wrongdoing or to defend the organization in litigation.³

Step three separates two ways in which confidentiality can fail. A lawyer who chooses to speak is judged under paragraph (a), and the question becomes which gateway is open. A lawyer who never chose to reveal anything, such as one whose files are exposed by a stolen device or an intruder, is judged under paragraph (c), which requires reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation.⁴ The gateway questions say nothing about a leak, because no one decided to reveal. Nor can careful safeguarding rescue a deliberate disclosure that no gateway covers, because paragraph (a) forbids it.

Steps four and five apply the gateways and their limits. Consent and implied authorization come from paragraph (a) itself, and the exceptions come from paragraph (b). Under every exception, disclosure is permitted only to the extent reasonably necessary to carry out the exception's purpose.⁵ A lawyer accused of participating in a client's securities fraud may, if necessary, disclose the fraud to investors, but may not report it to the Wall Street Journal. The lawyer who goes to the media is potentially subject to discipline even though a more modest disclosure would have been permissible in self-defense.⁶ Each exception therefore has to be read for its own elements, all of which must be satisfied before the lawyer relies on it.⁷

The same order governs problems in which a different rule seems to demand disclosure. Must a lawyer who learns of another lawyer's serious misconduct report it? Rule 8.3(a) codifies the obligation, but limits it: the violation must be truly known to the reporting lawyer and not merely suspected, it must raise serious questions about the other lawyer's fitness to practice, and the duty does not override the lawyer's duty to maintain client confidences.⁸ Misconduct learned through a client matter is information relating to the representation, so step one answers yes and confidentiality controls. The lawyer then needs one of the paragraph (a) gateways, which in practice usually means the client's informed consent. Where the knowledge did not come out of a client matter, step one ends the confidentiality inquiry and the reporting duty operates on its own terms.

Starting from confidentiality matters because the reporting rule is built to yield. A student who begins with the reporting duty and concludes that a report is required has reached a conclusion about that duty without learning whether the lawyer is free to speak at all. The conclusion is wrong whenever the information is protected and no gateway is open. The right sequence decides first whether silence is the default, then asks whether a gateway displaces it.

The sequence also shows how narrow the third gateway is. A paragraph (b) exception reaches only what the lawyer reasonably believes necessary for its purpose, and a lawyer who stretches an exception to fit a convenient disclosure risks discipline for over-disclosing.⁹