Permissive Exceptions Framework

Legal Compulsion and Conflict Checks

Permissive Exceptions Framework

Under Rule 1.6, silence is the default, and every disclosure of client information needs a justification. Rule 1.6(a) provides that 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 the disclosure is permitted by paragraph (b).¹ Those are the three routes to disclosure, and the exceptions in this chapter belong to the third.

The protected category is far wider than privilege. It covers all “information relating to the representation of a client,” including information learned from sources other than the client, observations and facts that are not “communications” for privilege purposes, and documents prepared in the ordinary course of business that work-product protection would not reach.²

The first two routes run through the client. The client may give informed consent. Without consent, the lawyer may still make disclosures that are impliedly authorized to carry out the representation. Suppose a landowner retains a lawyer to negotiate the sale of a parcel. That the land is for sale is confidential information, yet telling a prospective buyer so is plainly calculated to advance the client’s objective of selling, so the disclosure is impliedly authorized.³ Implied authorization also reaches inside the firm. Unless the client has indicated that only designated lawyers may have access to information, a lawyer may share client confidential information with other persons in the firm as necessary.⁴

The third route is the list in paragraph (b). By number, it permits disclosure to prevent reasonably certain bodily harm (b)(1); to prevent, rectify, or mitigate future frauds and the consequences of past and ongoing frauds for which the lawyer’s services were used (b)(2) and (b)(3); to obtain advice on compliance with the rules of professional conduct (b)(4); in self-defense (b)(5); to comply with law or a court order (b)(6); and to detect and resolve conflicts of interest (b)(7).⁵ This chapter takes up (b)(6) and (b)(7). Both inherit two features that run through the whole list.

The first feature is that the exceptions are permissive. In most states, and in the Model Rules, the exceptions in Rule 1.6(b) are permissive, not mandatory: the lawyer may disclose or decline, and either way is not subject to discipline under the confidentiality rule.⁶ An exam question that asks whether the lawyer must disclose under one of these exceptions is testing exactly this point. The exception supplies permission only. A duty to speak has to come from another rule, such as Rule 3.3, which requires reasonable remedial measures, including disclosure if necessary, when the lawyer comes to know that material evidence presented to a tribunal was false.⁷

The second feature is a ceiling. Paragraph (b) allows disclosure only “to the extent the lawyer reasonably believes necessary,” and each exception therefore reaches only as far as its own purpose.⁸ Suppose a lawyer is accused of helping a client commit fraud. Self-defense permits the disclosure that the defense reasonably requires. A lawyer who instead disclosed the fraud to the media would be potentially subject to discipline, even if more modest disclosure would have been permissible in self-defense.⁹ Each exception also has its own elements, and the lawyer must read the rule carefully and satisfy every one of them.¹⁰

The two exceptions ahead fit this framework. Rule 1.6(b)(6) permits disclosure to comply with other law or a court order.¹¹ Rule 1.6(b)(7) permits disclosure to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.¹² Both are permissive, and both are capped at what the lawyer reasonably believes necessary.