Implied Authorization

Implied Authorization

Rule 1.6(a) forbids a lawyer to reveal information relating to the representation unless the client gives informed consent, the disclosure is “impliedly authorized in order to carry out the representation,” or paragraph (b) permits it.¹ The second gateway asks less of the lawyer than the first. Informed consent depends on an exchange: the lawyer explains the material risks and reasonably available alternatives of a proposed disclosure, and the client agrees.² Implied authorization needs no exchange about the disclosure itself. The authority comes from the representation, so a lawyer who can show that a disclosure served what the client retained the lawyer to do has an open gateway even though the client never mentioned it.

Nearly every step in a representation reveals something about the matter. A demand letter tells its recipient what the client claims, and a settlement offer tells the other side what the client will accept. If each step needed its own consent conversation, the lawyer would stop before every letter and call to brief the client, and the client's objective would suffer under a rule meant to protect it. The Rule instead reads the client's decision to retain the lawyer for an objective as permission for the disclosures that objective requires.

Two features govern what follows. The authority is a default that the client controls, so it yields when the client says otherwise. It also reaches only as far as the representation requires, so it cannot cover a disclosure that serves someone other than the client. The subsections below trace the authority from its source in agency law, through its everyday uses, to those two limits.

The Agency Basis for Implied Authority

Implied authorization is a concept from agency law. The client determines the objectives of the representation after consultation with the lawyer, and the lawyer then proceeds in a manner reasonably calculated to advance the client's lawful objectives. Restatement § 16(1).³ Rule 1.2(a) approaches the same division from the other side by asking who gets to “call the shots,” and on what; in most instances, the client and the lawyer either work collaboratively or have a clear understanding of their respective realms of authority.⁴ The client owns the objectives, and the lawyer chooses the steps toward them. Most of those steps are communications with people other than the client, and each carries some information relating to the representation. A client whose authority over objectives ended at the lawyer's first outgoing call would have hired an agent who could not act, so the Rule treats the decision to pursue an objective as acceptance of the disclosures that pursuing it requires.

The Restatement of the Law Governing Lawyers supplies the measure. It describes impliedly authorized disclosures as those the lawyer “reasonably believes” will “advance the interests of the client in the representation.”⁵ Each half of that formula does its own work. The reference to the client's interests in the representation fixes the reference point, so the lawyer's convenience, reputation, or business ties add nothing to the authority. The reasonable-belief standard governs the lawyer's judgment: the lawyer may act without calling the client when a sensible lawyer would hold the belief, but a disclosure that merely sounds helpful does not qualify. Because the lawyer judges without having asked, the lawyer should stay in regular communication with the client so as not to overstep.⁶

The simplest application is a sale. A landowner retains a lawyer to negotiate the sale of a parcel, and the lawyer finds a potential buyer. To interest the buyer, the lawyer has to say something like “this land is for sale.” That information is protected by the duty of confidentiality, but the client's objective is to sell, and telling a prospective buyer the land is available is plainly calculated to advance that objective. The disclosure is impliedly authorized.⁷ A consent conversation would add nothing, because the risks and alternatives the lawyer would have to explain belong to a step that is the engagement itself.

A negotiation poses the harder question, because the lawyer must choose which facts about the client to put before the other side.

Both statements came from one engagement, yet only the first is authorized. The reasonable-belief test runs disclosure by disclosure, and what separates the two is each statement's connection to the client's objective. The common error is to treat the engagement as a blanket license, as though anything the lawyer says about the matter counts as carrying out the representation. Authority under this gateway attaches to particular disclosures that advance the objective, and the mere fact that a statement concerns the matter does not confer it.

On an exam, the choice between this gateway and informed consent usually turns on whether anyone discussed the disclosure. If the lawyer explained risks and alternatives and the client agreed, the basis is informed consent. If the lawyer revealed what the engagement itself required and no one discussed it, the basis is implied authorization, and the facts must then show that the disclosure advanced the client's objective.

Everyday Impliedly Authorized Disclosures

Five recurring situations show what the second gateway covers in practice: admitting an indisputable fact, facilitating a settlement, taking routine steps, sharing information within the firm, and protecting a client with diminished capacity. Each applies one test. The lawyer reasonably believes the disclosure will advance the client's interests in the representation, and the client has not instructed otherwise.⁹

Comment 5 to Rule 1.6 supplies the first two situations. 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.”¹⁰ An admission is itself a disclosure of information relating to the representation, yet a lawyer who contests a fact the record will establish anyway spends the client's credibility for nothing. A negotiation moves only when someone puts a fact on the table. If every admission and every settlement overture required a consent conversation, the lawyer could not answer a request to admit or respond to an offer between client meetings.

The Comment's phrase “cannot properly be disputed” does real work here. The authority covers conceding what is beyond dispute. Conceding a point the client could legitimately contest gives up something the client might have fought for, and the client is likely to want a say in that.

Routine steps follow the same logic. A letter scheduling a deposition tells its recipient that the client has a matter in dispute, and a lawyer ordinarily can believe such a step advances the client's interests without first asking. A step with significant consequences for the client is a harder case, taken up below.

The fourth situation arises inside the firm. Unless the client has indicated that only designated lawyers within the firm may have access to information, a lawyer is impliedly authorized to share client confidential information with other persons in the firm as necessary to perform the representation.¹¹ A client who hires a firm hires an organization, and the work is divided among partners, associates, and colleagues who cover absences. A rule forcing the responsible lawyer to ask permission before handing a file to the associate drafting the closing documents would defeat the reason for hiring a firm. The words “as necessary” limit the default from within: access follows the work, so a lawyer with no role in the matter has no claim on the file merely because the lawyer shares a letterhead.

Rule 1.14(c) is the codified example, and it uses the label itself. Information relating to the representation of a client with diminished capacity remains protected by Rule 1.6. When the lawyer takes protective action under paragraph (b), however, 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.”¹² The phrase “reasonably necessary” builds the necessity limit into the grant. Protecting a client usually means telling someone, and the Rule authorizes the telling while confining it to what the protection needs.

An exam stem built on this gateway usually describes a disclosure that nobody discussed with the client, so informed consent is unavailable and the question becomes whether the disclosure advanced the client's objective. Check two things before accepting implied authorization: whether the client limited the disclosure, and whether the disclosure went beyond what the representation needed. The next two subsections take up those checks in turn.

When Client Instructions Override

The word “impliedly” in Rule 1.6(a) marks the authority as an inference about what the client wants, and an inference gives way to direct evidence.¹⁴ Unless the client instructs otherwise or special circumstances indicate to the contrary, the client is presumed to have authorized the disclosures that are necessary for the lawyer in pursuing the objectives of the representation.¹⁵ An instruction is the simple case: the client tells the lawyer not to share a given fact, with a given person, or at all. Special circumstances are subtler. They consist of facts the lawyer knows that show the client would not want the disclosure although the client never said so. The presumption yields in both cases because it only predicts what a typical client in this position would want. Once this client has revealed a different preference, the client's actual wish controls, and the lawyer's view of what would be helpful cannot take its place.

The same override qualifies the in-firm default. The authority to share with other lawyers in the firm holds unless the client has indicated that only designated lawyers may have access to information.¹⁶ A client who limits access to named lawyers changes the answer for everyone else at the firm, however trustworthy. The client draws the circle of people who know.

The founder's instruction is the fact that separates the two scenes. The curious associate owed the same duty of confidentiality as the regulatory partner, so trustworthiness cannot explain the difference. The founder drew the circle of knowledge, and the manufacturer left the circle to the default.

Instructions and special circumstances can override the presumption only if the lawyer learns of them. Regular contact with the client is how the lawyer learns, which is why the lawyer should stay in communication so as not to overstep.¹⁷

The presumption also weakens as the stakes rise. The informed-consent standard scales the lawyer's explanation to the consequences: when the information is of greater value or the consequences of its release are likely to be more significant, the explanation appropriately will be more extensive.¹⁸ The same logic bears on whether to ask first. Implied authority works because a wrong guess about a routine disclosure costs the client little, while asking about every routine disclosure would cost the representation a great deal. When a disclosure could hand an adversary a decisive fact or expose the client to serious consequences, a wrong guess becomes expensive and a question cheap, and the lawyer should seek informed consent rather than lean on implication.

An exam stem that mentions a client's instruction about who may see or hear certain information is pointing to the override, and the implied-authorization analysis ends there unless another gateway independently applies. A stem that stresses high stakes and reports no conversation between lawyer and client points toward informed consent as the basis the lawyer needed.

The Necessity Limit

Rule 1.6(a) opens the second gateway only for a disclosure “impliedly authorized in order to carry out the representation,” and the closing phrase sets the gateway's reach.²⁰ Even with no contrary instruction, the gateway covers a disclosure only when the disclosure carries the representation forward. Others have real stakes in what the lawyer knows: whoever pays the fee, a relative who attends the meetings, a second client, and the lawyer, who may want to protect a reputation. None of those interests is the client's objective, and the client's objective is what this gateway authorizes the lawyer to pursue.

The limit follows from how the authority arises. The client's decision to retain the lawyer for an objective is read as acceptance of the disclosures the objective requires, so the authority is borrowed from the objective and extends no farther. If any disclosure the lawyer could call helpful qualified, the lawyer would decide what the gateway covered, and a lawyer who wanted to speak could always supply the description. Holding the line at the representation keeps the decision with the person who owns the information. Short of a paragraph (b) permission, only the client can enlarge what travels beyond the engagement's needs, and informed consent, which begins with the lawyer's explanation of the material risks and reasonably available alternatives, is how the client does it.²¹

Both statements came out of one engagement, and the only difference between them is whether the representation required the statement. A disclosure that concerns the matter, or that someone would find interesting, has not met the test.

Payment is the interest most easily mistaken for authority, because the person who pays has an obvious reason to want to know what the money buys. Rule 1.8(f) allows a lawyer to accept compensation from someone other than the client only if the client gives informed consent, nothing interferes with the lawyer's independent professional judgment or the client-lawyer relationship, and information relating to the representation remains protected by confidentiality under Rule 1.6.²² The Rule thus makes protection of the client's information a condition of the payer's arrangement. Payment buys no seat among those entitled to learn what the client told the lawyer.

Another client can also want the information. When two or more persons share one lawyer, the better practice is to raise at the outset how confidential information will be treated, rather than leaving expectations to inference, and to explain that neither person may invoke the attorney-client privilege to prevent the lawyer from disclosing communications to the other.²³ The next section takes up those arrangements.

A family member's interest raises the same problem in a gentler form. Older clients often appear with someone else, who may be there to provide transportation, to translate or explain, as a co-owner of property under discussion, as the likely designee of a decision-making proxy, or as a caregiver or source of moral or financial support. The lawyer must determine the precise role that person plays in setting the limits of the lawyer's dealings with him.²⁴ A companion's presence says nothing about what the client wants the companion to know. The lawyer must also consider undue influence: an arrangement a relative proposes may be primarily his own idea, and the likelihood of overreaching rises when the client lives in the relative's home.²⁵ A lawyer who answers a supportive relative's request for details has not asked what the client wants.

The lawyer's own interest is the last temptation, and courts treat unauthorized disclosure seriously. In Ex parte Skinner, the Georgia Supreme Court rejected a petition for voluntary discipline that sought a Review Panel reprimand, the mildest form of public discipline, for a violation of Rule 1.6.²⁶ Implied authorization gives a lawyer no shelter in that setting, because a disclosure that protects the lawyer advances no objective the client set for the representation.

These examples also separate the two client-based gateways. Under implied authorization the engagement supplies the permission, so it stops where the engagement's needs stop. Under informed consent the client supplies the permission, so it reaches a payer or a relative as far as the client agrees once the risks and alternatives are explained. An exam stem in which a payer, a relative, or the lawyer wants information and the client has said nothing therefore describes a closed second gateway. The remaining question is whether the facts show informed consent or a paragraph (b) permission.

Each of these settings turns on whose interest the disclosure serves, so the analysis runs best as four questions in order: