Exceptions Under Other Rules

Exceptions Under Other Rules

Rule 1.8(b) is a default rule, and its last clause says so. A lawyer may not use information relating to a client’s representation to the client’s disadvantage without informed consent, “except as permitted or required by these Rules.”¹ Where another Rule permits the use, or demands it, Rule 1.8(b) has nothing left to forbid. Rule 1.6 supplies most of those permissions, because it is where the Rules decide when protected information may be revealed without the client’s agreement.

The two rules guard the same information from two directions. A lawyer must not disclose it without the client’s informed consent, implied authorization, or an applicable exception in Rule 1.6(b), and must also refrain from making adverse use of it.² Rule 1.6(b) lets a lawyer reveal information relating to the representation “to the extent the lawyer reasonably believes necessary” for any of several listed purposes.³ The purposes most likely to arise beside Rule 1.8(b) are these:

1. Preventing reasonably certain death or substantial bodily harm.⁴
2. Securing legal advice about the lawyer’s own compliance with the Rules.⁵
3. Establishing a claim or defense on the lawyer’s behalf in a controversy between lawyer and client, defending against a criminal charge or civil claim based on conduct in which the client was involved, or responding to allegations about the representation.⁶
4. Complying with other law or a court order.⁷
5. Detecting and resolving conflicts of interest that arise when a lawyer changes jobs or a firm changes in composition or ownership, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.⁸

Two features of these exceptions control how they work with Rule 1.8(b). First, they are permissive. The text says a lawyer “may” reveal the information, and it does not command disclosure.⁹ Second, each exception is tied to a purpose and reaches only what that purpose reasonably requires.¹⁰ Without that limit, a narrow justification would license broad exposure, and the exceptions would swallow the protection. Take the self-defense exception in Rule 1.6(b)(5). A lawyer accused of taking part in a client’s securities fraud may, if necessary, disclose the fraud to the investors who made the accusation, but may not report it to the Wall Street Journal. A lawyer who goes to the press is potentially subject to discipline even though a smaller disclosure would have been allowed.¹¹

The clause also says “or required,” and some Rules go beyond permission. Rule 3.3 requires reasonable remedial measures, including disclosure of information otherwise protected by Rule 1.6 if necessary, when the lawyer comes to know that material evidence presented to a tribunal was false.¹² Rule 1.8(b) exempts what the Rules require, so a lawyer who must act cannot be faulted for acting.

The disciplinary case against attorney Dunagan shows the purpose limit at work. Dunagan used information relating to his representation of Paula Leucht to her disadvantage, in letters that named Karen Walston and Erven Alexander, the two employees William Leucht intended to fire. The question was whether rule 4-1.6 permitted those disclosures, and the court took the exceptions one at a time. The first exception permits revelation to the extent necessary to prevent a client from committing a crime. The letters made no reference whatsoever to Paula Leucht committing a crime, so their purpose clearly was not to prevent one, and the exception was clearly inapplicable. The referee also found that the letters did not qualify under the exception for preventing death or substantial bodily harm to another. Because the disclosures were not permitted under rule 4-1.6, the court approved the referee’s conclusion that the letters violated rule 4-1.9(b).¹³ That exception guards against one specific harm, a crime by the client whose information is in use, and the letters aimed at something else.

In both scenes the lawyer used information in a way that hurt the person it came from. The fee suit stands because the use matches an exception’s purpose and stays within it. The Dunagan letters fail because the purpose invoked was not the one the exception serves. Exam answers go wrong in two ways: by treating any protective-sounding label as an exception, and by reading a permissive exception as a license for unlimited disclosure. Ask which listed purpose the use serves, then ask whether the lawyer used only what that purpose required.

Implied authorization is a separate route. Rule 1.6(a) allows a lawyer to reveal information when the disclosure is impliedly authorized to carry out the representation.¹⁴ Unless the client instructs otherwise or special circumstances point the other way, the client is presumed to have authorized the disclosures the lawyer needs to pursue the objectives of the representation.¹⁵ A landowner who hires a lawyer to sell a parcel has impliedly authorized the lawyer to tell prospective buyers that the land is for sale, because that disclosure is calculated to advance the client’s objective.¹⁶ The test turns on advancing the client’s interests, so a lawyer whose act serves the lawyer or a stranger at the client’s expense cannot rest on it. The lawyer should also stay in regular communication with the client so as not to overstep.¹⁷