Exceptions Borrowed From Rule 1.6

Both prohibitions in Model Rule 1.9(c) end with the same qualifying clause. A lawyer may not use information relating to the representation to the former client’s disadvantage “except as these Rules would permit or require with respect to a client,” and may not reveal such information except on the same terms.¹ The clause creates no exceptions of its own. It sends the lawyer to the rest of the Rules with one question: would the Rules permit or require this use or disclosure if the former client were still a client? Because the words are identical in both subparagraphs, one analysis serves use and revealing alike. Only the generally known carve-out in the use prohibition, already covered, belongs to one subparagraph alone. The lawyer gains no extra room to use or disclose information merely because the representation has ended.

The sections below follow the clause’s own terms. Consent and authorization, which the former client controls, come first. The permissive exceptions in Rule 1.6(b) come second. The “require” half of the clause, covering disclosures compelled by a Rule, by other law, or by a court order, comes last. Each exception is bounded by the reason that justifies it, so a lawyer who fits within one may use or reveal only what that exception justifies, and the rest of the former client’s information stays protected.

The first thing the Rules permit with respect to a client is a use or disclosure that the client approves. Rule 1.6(a) lets a lawyer reveal information relating to the representation when the client gives informed consent, when the disclosure is impliedly authorized in order to carry out the representation, or when paragraph (b) permits it.² Each of those doors stays open under paragraph (c). This section takes up the first two, and the Rule 1.6(b) exceptions follow.

Consent carries weight because the protection belongs to the former client. The rule’s provisions are for the protection of clients and can be waived if the former client gives informed consent.³ Absent that consent, the lawyer is forever barred from using a former client’s private information to the former client’s detriment or for the benefit of another.⁴ Only the former client can give the waiver, so the lawyer’s own prediction that the client would not mind cannot take its place.

Consent counts only when it is informed, and Rule 1.0(e) supplies the standard. The client must receive “adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”⁵ The explanation concerns the proposed course of conduct, so the consent reaches the use or disclosure the lawyer explained and leaves every other use or disclosure of the former client’s information protected. A sound explanation tells the client who will receive the information, what the recipient might do with it, and whether a narrower disclosure would serve the same need.

The amount of explanation moves with the stakes. When a disclosure appears innocuous and the client well understands the information and the effect of revealing it, little explanation may be required. When the information is more valuable or the consequences of its release are likely to be more significant, the lawyer’s explanation appropriately will be more extensive.⁶

Hypothetical Illustration

Years ago a lawyer finished a lease negotiation for a medical practice, and a lender now wants to see the lease terms. Before sending anything, she telephones the practice’s founder. She explains that the lender could share the terms with its loan committee and participating banks, and that she cannot pull them back once sent. She also describes the alternative of giving the lender only the lease length and a rent range. The founder approves the summary and declines the full lease. The lawyer may send the summary. The consent reaches that disclosure only, so the lease’s other terms remain protected. The explanation was full because the terms are commercially sensitive and the recipient is a stranger to the client. A passing mention that a client already understands and regards as harmless would need far less.

The second route in Rule 1.6(a), implied authorization, covers disclosures that carrying out the representation requires. The concept comes from agency law: the client sets the objectives, and the lawyer acts reasonably to advance them.⁷ Unless the client instructs otherwise or special circumstances indicate the contrary, the client is presumed to have authorized the disclosures the lawyer needs in pursuing those objectives. Comment 5 to Rule 1.6 explains that a lawyer may be impliedly authorized “to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter,” and the Restatement speaks of disclosures the lawyer “reasonably believes” will “advance the interests of the client in the representation.”⁸ A landowner who retains a lawyer to negotiate the sale of a parcel gives the lawyer confidential information, including the fact that the land is for sale. The lawyer who finds a buyer must tell the buyer so, and the disclosure is impliedly authorized because it advances the client’s objective of selling.⁹ Even then, the lawyer should stay in regular communication with the client so as not to overstep.¹⁰

Implied authorization has little room once the engagement is over. That limit is analysis from the doctrine’s own premise, and the sources do not state it. The authority is implied from the client’s objectives in the representation, and a closed matter leaves no pending objective for a disclosure to advance. A lawyer who tells a lender or a reporter about a former client’s affairs and calls the disclosure implied has no objective to point to, and the former client’s silence cannot supply an agreement the client never gave. For a former client, the dependable route is actual informed consent, obtained before the use or disclosure and covering what was explained.

Rule 1.6(b) Exceptions

Where the former client has said nothing, the closing clause of paragraph (c) still admits any use or disclosure the Rules would permit with respect to a client, and the principal source of that permission is Rule 1.6(b).¹² Rule 1.6(a) permits any disclosure that paragraph (b) allows, and paragraph (b) allows a lawyer to reveal information relating to the representation “to the extent the lawyer reasonably believes necessary” to serve a listed purpose.¹³ The consent route needs the former client’s agreement, and these exceptions work without it. The test is whether Rule 1.6(b) would have allowed the disclosure if the former client were still a client. An exception that would not have fit during the engagement does not become available when the engagement ends.

The exceptions fall into six groups. The list below is only for recognition, because each is taught in full with Rule 1.6 itself.¹⁴

Preventing reasonably certain bodily harm, in paragraph (b)(1).
Preventing, rectifying, or mitigating a fraud in which the lawyer’s services were used, whether the fraud is future, past, or ongoing, in paragraphs (b)(2) and (b)(3).
Securing legal advice about the lawyer’s own compliance with the Rules, in paragraph (b)(4).
Self-defense, as when the lawyer is accused of having participated in a client’s fraud, in paragraph (b)(5).
Complying with law or a court order, in paragraph (b)(6).
Detecting and resolving conflicts of interest that arise from a change of employment or a change in a firm’s composition or ownership, in paragraph (b)(7).

Each exception has elements, and every element must be satisfied before a lawyer relies on it.¹⁵ Beyond the elements, two principles run through the whole list and decide most problems.

The first is that the exceptions are permissive. In the Model Rules a lawyer who fits within Rule 1.6(b) may disclose but need not, and either choice leaves the lawyer free from discipline.¹⁶ The Rules lift the prohibition for the particular disclosure and leave the lawyer free to stay silent. For a former client, an exception removes one disclosure from the reach of subparagraph (c)(2), and the rest of the former client’s information stays as protected as before. A duty to speak, if one exists, must come from a different source, and the next section takes up those sources.

The second principle is that a disclosure may go only as far as the exception’s purpose needs. Rule 1.6(b) builds that limit into its text by allowing disclosure only to the extent the lawyer reasonably believes necessary, and the limit governs both how much the lawyer reveals and who receives it.¹⁷ The self-defense exception shows the limit at work. A lawyer accused of having participated in a client’s securities fraud may, if necessary, disclose the fraud to investors, but may not report it to the Wall Street Journal, and a lawyer who goes to the press risks discipline even though a narrower disclosure would have been permissible.¹⁸ The difference is purpose. Telling investors, if necessary, answers the accusation, and telling the press goes beyond what that purpose requires.

On an exam the information usually stays constant while the audience or the amount changes, so the first question about any claimed exception is who receives the disclosure and whether that recipient needs it for the exception’s purpose. The same limits govern privileged information. The ethics exceptions apply to privileged client communications too, but only for the limited purposes and generally non-evidentiary means for which the rules allow disclosure, and the privilege’s protection against evidentiary use remains a separate matter.¹⁹

Fitting an exception also means meeting its terms, and Florida Bar v. Dunagan shows what happens when a disclosure does not. The opinion applies Florida’s rules, whose numbering differs from the Model Rules: it places the exception for preventing death or substantial bodily harm in rule 4-1.6(b)(2), while the Model Rule list puts bodily harm in paragraph (b)(1).²⁰ The referee found that Dunagan’s letters were not permissible under that exception, and Dunagan did not dispute the finding.²¹ Dunagan had clearly used information relating to his representation of Paula Leucht to her disadvantage, and no provision of the confidentiality rule permitted the disclosures. The court therefore approved the conclusion that the letters violated rule 4-1.9(b).²² The case supplies a method for any problem of this kind: identify the use or disclosure, find the exception the lawyer relies on, and test whether its terms fit. An exception that does not fit saves nothing, and the prohibition applies as written.

Two other exceptions connect to the situations in which former-client duties most often arise. The conflict-detection exception allows a lawyer to reveal information 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.²³ The exception exists for the conflicts check, and it ends where the check could hurt the former client. A lawyer who tells a new firm enough to see whether its engagements clash with a former client’s matter is within it. A lawyer who recounts the former client’s strategy or private facts goes past it, because the check does not need them and the disclosure would prejudice the client. The advice exception works the same way. A lawyer unsure whether a planned use or disclosure of a former client’s information is permitted may reveal what is reasonably necessary to secure legal advice about complying with the Rules, and no more.²⁴

Required Disclosure and Court Orders

Both prohibitions yield to what the Rules “would permit or require with respect to a client,” and the preceding sections covered the permit half.²⁶ The word require adds a second route, for situations in which a Rule, other law, or a court compels the lawyer to disclose. This route is much narrower than students expect. Few rules demand that a lawyer reveal confidential information, the ones that do apply to specific occasions, and the rule that sounds most mandatory yields to confidentiality.

The clearest true requirements are Rules 3.3 and 4.1. In narrow circumstances they require the lawyer to reveal information, including information that Rule 1.6 would otherwise protect, when disclosure is necessary to prevent or correct client fraud against a tribunal or another person.²⁷ Rule 3.3, for instance, 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 or that a person has engaged or will engage in criminal or fraudulent conduct with respect to the adjudicatory proceeding.²⁸ When one of these Rules would require disclosure with respect to a client, paragraph (c) lets the same disclosure through for a former client.

Rule 8.3 shows how a duty that sounds mandatory can still give way. It reaches only violations the lawyer actually knows of and does not merely suspect, and only those that raise a substantial question about the other lawyer’s honesty, trustworthiness, or fitness to practice. Comment [3] limits the obligation to misconduct “that a self-regulating profession must vigorously endeavor to prevent.”²⁹ Even then, the reporting duty does not override the lawyer’s duty to maintain client confidences.³⁰

In re Himmel is the familiar contrast. Model Rule 8.3 does not require reporting of information relating to the representation, so a modern-day Himmel in a Model Rules jurisdiction would not have to report.³¹ The exemption turns on whether the information relates to the representation, not on whether it is privileged. A lawyer who learned of another lawyer’s misconduct in a former client’s matter therefore holds information that paragraph (c) still protects. Rule 8.3 does not compel a report, and a voluntary one requires the former client’s informed consent or a Rule 1.6(b) exception.³²

The cross-reference also admits disclosures that other law or a court order compels. Rule 1.6(b)(6) permits disclosure to comply with law or a court order, so a lawyer who reveals a former client’s information under a court order acts within the exception, but only as far as the order or the law requires.³³

An exam stem will often add that the information is not privileged, or that the opposing party could demand it in discovery, and then ask whether the lawyer may volunteer it. Those facts supply no permission. The duty to preserve confidential information extends much further than privileged communications, and it makes no difference that a former client’s adversary might be able to discover the material.³⁴ Under Rule 1.6(a) the lawyer may disclose only with the client’s informed consent, with implied authorization to carry out the representation, or under an exception in Rule 1.6(b).³⁵ Possible discoverability is a forecast of what some tribunal might order someday, and a forecast has none of the authority of an order.

The information is the same kind in Nwosu’s testimony and in Kessler’s conversation. What differs is whether a tribunal or a specific law has actually compelled the disclosure, and that fact alone separates a permitted revelation from a prohibited one.