Concept
Information Protected by the Duty
Rule 1.9(c): Duty not to use or reveal a former client's information
Information Protected by the Duty
Paragraph (c) rises or falls on one phrase: "information relating to the representation." Subparagraph (c)(1) forbids using that information to the former client's disadvantage, and subparagraph (c)(2) forbids revealing it, so whatever the phrase covers marks the outer edge of both prohibitions.1 Rule 1.6(a) uses the same words to define confidential information, and it defines it broadly: all "information relating to the representation of a client."2 A duty is only as strong as the category it governs, and this category is wide.
Three features give the category its width. First, the source of the information does not matter. Comment 3 to Rule 1.6 says that the confidentiality rule "applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source."3 Second and third, information is confidential under Rule 1.6(a) whether or not the client has asked that it be kept secret, and whether or not the lawyer, in her own judgment, would regard it as embarrassing or detrimental to the client.4 Together these features take two judgments out of the test: the client's decision to flag a fact as secret, and the lawyer's view of whether it matters. The only question left is whether the information relates to the representation.
Older cases speak a different vocabulary. The old Model Code distinguished "confidences" from "secrets," and several states, including New York and the District of Columbia, have kept those terms. On that approach the duty covers information "likely to be embarrassing or detrimental to the client if disclosed," or information the client has asked to keep confidential.5 Rule 1.6(a), in contrast with Disciplinary Rule 4-101(A) of the former Model Code, drops those conditions.6 In practice the two definitions are unlikely to differ much, but a lawyer working under the modern rule should not look for either condition before treating information as protected.7
The category covers quite a bit more than privileged communications and work product. It includes:
- information the lawyer learned from sources other than the client;
- observations and facts that would not count as "communications" for purposes of the attorney-client privilege; and
- documents prepared in the ordinary course of business, which work-product protection would not reach.8
The breadth of the ethical duty shows most clearly beside the attorney-client privilege, a separate doctrine that students often run together with it. The privilege is a right to withhold information from a legal proceeding, and it protects a client's private information at the expense of the court's truth-seeking process.9 It attaches only to a special subset of the lawyer's confidential information: communications between lawyer and client that are entitled to immunity from legal process and may not be adduced as evidence against the client.10 The ethical duty is the larger circle. It certainly includes the lawyer's communications with the client, but it covers all information the lawyer holds that is related to the representation.11
The two categories trade breadth against strength. Confidential material is broadly defined but subject to several exceptions, and it may not be entitled to any immunity from legal process. Privileged information is more narrowly classified and subject to fewer exceptions, and it does provide immunity from legally compelled disclosure.12 For paragraph (c), the working consequence is that protection does not depend on whether the information is privileged. A client's email asking for legal advice is both privileged and confidential. A third-party witness's account of the client's business is confidential only. Both fall within the information that paragraph (c) protects. A lawyer who reasons that information may be used or revealed because it was never a privileged communication has mistaken a doctrine about evidence for the duty that governs the lawyer's own conduct. The exceptions to the duty, including required disclosure and court orders, come later in this reading.
The category is wide, but that does not make every bit of knowledge a lawyer carries away from a representation off-limits. The comment to Florida's former-client rule, set out in In re Amendments to the Rules Regulating the Florida Bar, 24 So. 3d 63 (Fla. 2009), draws a practical line. For an organizational client, general knowledge of the client's policies and practices ordinarily will not preclude a later representation, but knowledge of specific facts gained in the prior representation that are relevant to the matter in question ordinarily will. Information may also have been rendered obsolete by the passage of time. And a former client need not reveal the confidential information the lawyer learned in order to establish a substantial risk that the lawyer has confidential information to use in the later matter.13
The comment's own example shows where specific facts begin. A lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent the person's spouse in seeking a divorce.14 The comment adds that having once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.15 That comment is Florida authority, not Model Rule text, and it speaks to when a later representation is barred. The distinction it draws is nonetheless the one to watch when applying paragraph (c). It should not be confused with the generally known carve-out in subparagraph (c)(1), which asks whether the information has already become public. The next sections take that carve-out up with the limits on use and revelation.