Concept
Securing Ethics Advice
Disclosure for the lawyer's own ethics advice, claims, and defenses
Securing Ethics Advice
A lawyer who cannot tell what the Rules require has an awkward problem. The question usually cannot be answered without describing the client's matter, and Rule 1.6(a) forbids revealing information relating to the representation unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or paragraph (b) permits it.1 Rule 1.6(b)(4) solves the problem. It permits a lawyer to reveal information relating to the representation "to secure legal advice about the lawyer's compliance with these Rules," and, like every exception in paragraph (b), only to the extent the lawyer reasonably believes the disclosure necessary.2
The exception has three working parts. Its purpose is legal advice. Its subject is the lawyer's own compliance with the Rules. Its limit is reasonable necessity. A disclosure that misses any one of the three falls outside the exception and back under the Rule 1.6(a) prohibition.
Students most often misread the subject. A genuine question about what the Rules require or permit triggers the exception, and the text sets no requirement that a claim, a grievance, or the threat of one exist first. Does the client's instruction force a withdrawal? Must a mistake in a filing be reported to the client? Would another paragraph (b) exception cover a disclosure the lawyer is contemplating? Each is such a question. The last matters most, because advice about compliance includes advice about the permissions and obligations that govern disclosure of confidential information, so the exception lets a lawyer test a planned disclosure with another lawyer before making it.3 A lawyer who has already been accused of wrongdoing stands elsewhere. The claims-and-defenses exception, taken up below, governs that lawyer, and a later section sets the two exceptions side by side.
The rule names no recipient, but its purpose fixes who qualifies: another lawyer, who can give advice about compliance with the Rules.4 The recommended choice is an expert who focuses on legal ethics and malpractice matters. The consultation also stays inside a confidential relationship, because information shared with counsel in the course of seeking legal advice is itself treated as confidential under Rule 1.6(a).5 A friend who is not a lawyer cannot give legal advice. Telling the friend therefore serves no purpose the exception recognizes, however natural the impulse.
The ABA wrote this exception into Rule 1.6 in 2002.6 The permission had been only implicit in earlier practice, and the rule now authorizes it expressly.7 The express grant matters because advice is only as good as the account behind it. In RFF Family Partnership LP v. Burns & Levinson, the Massachusetts Supreme Judicial Court quoted the practical case for early advice: lawyers who realize they have erred should be encouraged to seek advice promptly and to make full disclosure to the adviser, so that the mistake may be rectified before the client is irreparably damaged.8 Timing matters for a second reason. A lawyer who learns of facts that could give rise to a claim may react with anger, denial, shame, or fear, and consulting counsel helps the lawyer evaluate the situation objectively and plan a course of action.9
The same reasoning applies before a lawyer uses any other confidentiality exception. Except in an emergency, a lawyer weighing the momentous step of revealing a client confidence without the client's consent, and adverse to the client's interests, is well advised to consult other well-regarded lawyers first, and paragraph (b)(4) authorizes that consultation.10
A footnote in the Massachusetts opinion adds a warning about jurisdictions. It records that the ABA amended Model Rule 1.6 in 2002 to authorize this disclosure, but that Massachusetts Rule 1.6(b) had not been similarly amended, although the court's advisory committee was reviewing the Massachusetts rules and considering the ABA amendments.11 The Model Rules state the ABA's text, and a lawyer's permission comes from the rules of the jurisdiction of admission. Check the local rule before assuming the exception exists.
The necessity limit keeps the exception small. Disclosure reaches only what the lawyer reasonably believes necessary to accomplish the purpose of the exception, and over-disclosure can subject a lawyer to discipline.12 The working test asks what the adviser must know to answer the question put. A lawyer who asks whether an instruction forces a withdrawal needs to convey the instruction and its context, and the rest of the client's file adds nothing to the answer. A qualifying purpose does not excuse an excess of detail, so a lawyer can violate the rule in the course of a consultation that was proper in every other respect.
Exam questions usually test this exception by giving a lawyer a sympathetic reason for revealing information, one that misses either the purpose or the audience.
Neither disclosure fits the exception, and each fails at the first step. The consultant gives business advice, and the underlying question concerns a lease rather than the Rules. The friend, not being a lawyer, cannot give legal advice. Absent client consent or implied authorization, each disclosure falls under the Rule 1.6(a) prohibition.
The first three steps decide whether the exception applies at all, and the fourth decides how far it reaches. A lawyer who passes the first three can still lose on the fourth by sending an adviser an entire file when the question needed two paragraphs of it.