Rule 1.6(b) Framework

Harm-Prevention Exceptions to Confidentiality

Rule 1.6(b) Framework

Rule 1.6(a) forbids a lawyer to reveal information relating to the representation of a client unless one of three conditions holds: the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or paragraph (b) permits it.¹ Because the ban attaches to all information relating to the representation, it reaches well beyond privileged communications.²

Two of the three exits depend on the client. Informed consent is the client's own permission. Implied authorization covers disclosures that plainly advance the client's objectives: a lawyer retained to sell a parcel of land must tell a prospective buyer that the land is for sale, and because the client wants to sell, that disclosure is impliedly authorized.³ Paragraph (b) works differently. Its exceptions let a lawyer disclose without the client's consent and adversely to the client's interests, a step one source calls momentous.⁴

This chapter treats three of the paragraph (b) exceptions, the ones aimed at harm:

• Paragraph (b)(1) permits disclosure to prevent reasonably certain death or substantial bodily harm.⁵
• Paragraph (b)(2) permits disclosure to prevent the client from committing a crime or fraud that is reasonably certain to cause substantial injury to another's financial interests or property and in furtherance of which the client has used or is using the lawyer's services.⁶
• Paragraph (b)(3) permits disclosure to prevent, mitigate, or rectify substantial financial injury to another that is reasonably certain to result, or has already resulted, from a client's crime or fraud in furtherance of which the client has used the lawyer's services.⁷

They differ in the harm they target and in the facts that trigger them, and later sections take each apart. Here the question is what they share, and the answer is a lead-in. A lawyer "may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary."⁸ That one clause does three jobs. May makes disclosure permissive. To the extent ... necessary caps how much the lawyer may reveal. Reasonably believes sets the standard for the lawyer's judgment. The consequences run in both directions: a lawyer who discloses within an exception is not disciplined, and neither is a lawyer who stays silent, but a lawyer who reveals more than the exception's purpose requires can be.⁹

Every exception therefore carries the same three conditions, and each subparagraph adds only its own harm and its own triggering facts. Read each exception closely and confirm that every element is satisfied.¹⁰ The next subsection takes up permission; the one after it takes up scope and belief.

Permission, Not Duty

The verb in the lead-in settles whether an exception obliges a lawyer to act. The lead-in says a lawyer may reveal information; it never says what a lawyer must do.¹¹ Subparagraphs (b)(1) through (b)(3) inherit that verb, so each describes a situation in which disclosure becomes allowed, not required. Under the Model Rules and in most states, a lawyer who discloses within an exception is not disciplined, and a lawyer who stays silent is not disciplined either.¹²

The permissive design trades protection of third parties against protection of the client relationship. Revealing a confidence against the client's wishes damages the trust that leads clients to tell their lawyers everything, and that candor is what lets a lawyer counsel against unlawful conduct in the first place. At the moment of decision the lawyer also knows what no one else does: how credible the threat is, how the client will react to a warning, and whether a firm refusal to help might defuse the plan. A permissive rule lets the lawyer weigh those facts against the threatened harm and shields the lawyer from discipline whichever way the weighing comes out. A mandatory rule removes the weighing and makes protection of third parties the controlling value in every case.

A jurisdiction that replaces may with must reverses the result for a lawyer who holds the same reasonable belief. New Jersey and Florida stand at that mandatory end of the spectrum by providing that a lawyer must disclose client confidences to prevent criminal acts.¹³ A. v. B. shows New Jersey's rule at work. The law firm Hill Wallack claimed that RPC 1.6(b) applied, but the court held that the facts did not justify mandatory disclosure: the possible inheritance of the wife's estate by the husband's illegitimate child was too remote to be "substantial injury to the financial interest or property of another."¹⁴ A mandatory rule thus has its own trigger, and the trigger must still be met. Once it is met, the lawyer in the burning-building scene has no choice, because silence is itself the violation.

An opinion comparing the two rules explains where the contrast comes from. The ABA House of Delegates rejected the Kutak Commission's recommendation, and the Model Rule, as the opinion described it, permitted disclosure only to prevent a criminal act likely to result in imminent death or substantial bodily harm. It made no exception for fraud or financial injury, and in no situation did it require disclosure, so it provided for narrower disclosure than New Jersey's rule.¹⁵ The current Model Rule has since added the financial-harm exceptions in (b)(2) and (b)(3), but its verb is still may.¹⁶

The sources sort jurisdictions into three groups as they stood when written, so check the current text of any state's rule before relying on it.

• California, Washington, and the District of Columbia continued to prohibit a lawyer from disclosing to sources outside the corporation that a client was about to engage in illegal conduct.¹⁷
• The revised Model Rule matches the prevailing rule in the vast majority of states, which permit disclosure without requiring it.¹⁸
• New Jersey and Florida require a lawyer to disclose confidences to prevent criminal acts.¹⁹

Florida's Rule 4-1.6(b) requires a lawyer to reveal information to the extent the lawyer reasonably believes necessary to prevent a client from committing a crime.²⁰ Iowa and South Dakota show that jurisdictions can differ on two variables at once. As one source describes them, Iowa mandates disclosure when the threat of death or serious bodily harm is imminent, whatever the source of the threat, while South Dakota permits but does not mandate disclosure to prevent imminent death or substantial bodily harm, and only when the harm will result from the client's criminal act.²¹ A threat known to two lawyers could therefore oblige the Iowa lawyer to speak. It would leave the South Dakota lawyer free to choose, and it would permit disclosure there only if the client's own crime was the source.

Pennsylvania's version shows how a single clause can combine bodily and financial harm. A footnote in Emerich v. Philadelphia Center for Human Development, Inc. quotes Pennsylvania Rule of Professional Conduct 1.6(c)(1): a lawyer may reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm or substantial injury to the financial interests or property of another.²² The footnote observes that the attorney-client confidentiality law referred to in the statute at issue permits disclosure without consent when death or substantial bodily harm is likely, and it describes permission only. Whether another body of law, such as tort law, could impose a duty to disclose is a separate question that Rule 1.6(b) does not answer. On the disciplinary question the permissive text controls, and any third-party liability theory is a separate issue to flag.

Rule 1.6(b) never compels disclosure, but other rules can. Florida's Rule 4-3.3(a)(2) requires a lawyer to reveal a material fact to a tribunal when disclosure is necessary to avoid assisting a client's criminal or fraudulent act, and Rule 4-3.3(a)(4) prohibits offering false evidence and requires reasonable remedial measures when false material evidence has been offered.²³ Model Rule 4.1(b) forbids failing to disclose a material fact to a third person when disclosure is necessary to avoid assisting a client's crime or fraud, but only unless Rule 1.6 prohibits the disclosure.²⁴ That qualifier shows how much weight the confidentiality rule carries even against other duties to disclose. Later sections return to these related rules and to the withdrawal obligations that accompany them.

Necessity and Reasonable Belief

The closing words of the lead-in, to the extent the lawyer reasonably believes necessary, add two more limits to every exception.²⁶ To the extent and necessary fix how much the lawyer may reveal and to whom. Reasonably believes fixes the quality of judgment the lawyer must exercise before revealing anything. Scope comes first.

Each exception exists because a particular harm threatens, and the permission lasts only as long as disclosure is needed to meet that harm. The extent of disclosure is limited to what the lawyer reasonably believes necessary to accomplish the purpose of the exception, and over-disclosure can draw discipline.²⁷ Once a narrow disclosure would avert the harm, the default of confidentiality in paragraph (a) governs everything else the lawyer knows. The limit has two dimensions, content and audience. A lawyer who reveals more facts than the harm requires, or who tells people who cannot help prevent it, has stepped outside the exception even though some disclosure was allowed. Without that ceiling, one threat would open the whole client file.

The self-defense exception in Rule 1.6(b)(5) falls under the same lead-in, so it supplies a clean illustration of a ceiling that applies to all the exceptions. A lawyer accused of taking part in a client's securities fraud may, if necessary, disclose the fraud to the investors, but a report to the Wall Street Journal would expose the lawyer to discipline, even though a more modest disclosure was permitted in self-defense.²⁸ The exception allowed some disclosure, and the amount and the audience decided whether this disclosure fell inside it. A lawyer who may warn someone under a harm-prevention exception must likewise pick the audience that can actually stop the harm.

The second limit, reasonably believes, governs how the lawyer's judgment is measured. A lawyer seldom knows what a client will do, because the harm lies in the future. A rule demanding certainty would make the lawyer wait until the harm occurred or could no longer be stopped, which defeats the exception. A rule satisfied by any honest suspicion would go to the other extreme and let a private worry override one of the profession's central duties. Objective reasonableness sits between the two. A lawyer who acts on solid information that later proves wrong remains protected; a lawyer who acts on impulse does not.

McClure v. Thompson took that middle course. A client claimed that his lawyer's disclosure of confidential statements about the location of the children violated his Sixth Amendment right to effective assistance of counsel.²⁹ The court started from the premise that our legal system rests on strict adherence to confidentiality.³⁰ It then asked two questions: whether the lawyer reasonably believed that the precondition for disclosure existed, and whether, in coming to that belief, the lawyer conducted a reasonable investigation and inquiry.³¹ The professional rule asks only whether the lawyer reasonably believes disclosure necessary to prevent the crime, and the ineffective-assistance standard likewise asks whether counsel acted reasonably under all the circumstances. The court therefore held that the guiding rule for the exception for preventing criminal acts is objective reasonableness in light of the surrounding circumstances.³² The exception at issue concerned a client's crime, but the reasoning about belief carries over to any exception that uses the same lead-in.

The tie to inquiry follows from the reasons for an objective test. Errors run in both directions here, since delay can cost a life or an asset while a mistaken disclosure damages the client's trust. A lawyer facing an ambiguous statement should therefore resolve the ambiguity when a simple question will do.

A jurisdiction can also write the standard into its rule. New Jersey's RPC 1.6(d), as quoted in Fellerman v. Bradley, defines reasonable belief as the belief or conclusion of a reasonable lawyer, based on information that has some foundation in fact and constitutes prima facie evidence of the matters that trigger the exception.³³ The Model Rule lead-in leaves unstated what must support the belief, so that content comes from decisions like McClure and their attention to inquiry.³⁴ The two approaches point the same way. A lawyer under a definition like New Jersey's can test a belief directly against the text by asking whether it rests on information with a factual foundation strong enough to amount to prima facie evidence.

A lawyer weighing disclosure outside an emergency does well to consult another lawyer first, and the rules expressly authorize revealing information to obtain that advice.³⁵ That authorization is the exception in (b)(4), which permits disclosure to obtain advice on compliance with the rules of professional conduct.³⁶