Rule 1.6 as the Limit

Rule 1.6 as the Limit

Rule 4.1(b) ends on a condition. A lawyer must not knowingly fail to disclose a material fact when disclosure is necessary to avoid assisting a client’s crime or fraud, “unless disclosure is prohibited by Rule 1.6.”¹ That clause is the second step of the analysis. The elements discussed above first establish that the lawyer would have to speak; you then ask whether the duty of confidentiality forbids what the lawyer would say. If it does, the duty to disclose gives way.

Confidentiality ranks higher because of how clients behave. A client tells the lawyer the whole truth because the lawyer will keep it private, so a lawyer who could be made to pass the client’s account to the other side would hear less of it. A lawyer who hears less is also poorly placed to talk the client out of wrongdoing, which the previous section identified as the usual first move. The rule therefore makes paragraph (b) subordinate to confidentiality.

The deference runs to Rule 1.6 as it currently reads, so its strength varies. Rule 1.6 contains exceptions that permit a lawyer to reveal information in certain situations involving a client’s wrongdoing. Wherever one applies, Rule 1.6 does not prohibit the disclosure, and the carve-out has nothing left to protect. The boundary moves with the text of Rule 1.6: the same facts can end in silence where no exception applies and in a duty to speak where one does. A student who memorizes that confidentiality always defeats the duty to disclose will go wrong under the current Model Rules. The subsections below take up the clause itself, the way the exceptions in Rule 1.6 narrow it, the difference between confidentiality and privilege, and the states’ departures from the Model Rule.

The Confidentiality Carve-Out

The last words of Rule 4.1(b) excuse a lawyer from the duty to disclose a material fact “unless disclosure is prohibited by Rule 1.6,” and the comment to the rule adds that the disclosure requirement is subject to the obligations Rule 1.6 creates.² The operative word is prohibited. The clause does not ask whether silence would help the client or whether the lawyer would prefer not to speak. It asks whether the confidentiality rule forbids this disclosure, and when it does, the obligation of disclosure is lifted.³ That one word holds two questions worth keeping apart: whether the information falls within the category Rule 1.6 protects, and whether anything lifts that protection.

Rule 1.6(a) draws the protected category very wide. The lawyer must refrain from revealing information relating to the representation of a client unless the client has consented, and the protection attaches whatever the source of the information, whether or not the client asked for secrecy, and whether or not disclosure would embarrass or harm the client.⁴ Confidentiality is therefore broader than the evidentiary privilege and broader than work product.⁵ The breadth matters for the carve-out because the facts a lawyer would have to reveal to avoid assisting a client’s fraud are almost always facts learned in the course of the representation. The first question is therefore usually answered yes without much difficulty. A student who stops to ask whether the client’s statement was a privileged communication has asked the wrong question and may wrongly conclude that the carve-out is out of play. The real work lies in the second question, where the lawyer looks for a way past the prohibition.

Rule 1.6(a) allows protected information to be revealed in three situations: the client gives informed consent, the disclosure is “impliedly authorized in order to carry out the representation,” or an exception in Rule 1.6(b) permits it.⁶ If any one is present, Rule 1.6 no longer prohibits the disclosure, and the carve-out in paragraph (b) has nothing left to protect. Informed consent is the primary and typical route, and it takes more than a nod. The client must receive adequate information and explanation about the material risks of the disclosure and the reasonably available alternatives, and the more valuable the information, or the more serious the consequences of releasing it, the fuller that explanation must be.⁷ Implied authorization comes from agency law: the client sets the objectives, and the lawyer is presumed to have permission to make the disclosures that advance them, as when the lawyer for a landowner tells a prospective buyer that the land is for sale.⁸ The presumption gives way when the client instructs otherwise or special circumstances point the other way.⁹ In the Rule 4.1(b) setting the presumption is thin, since telling a counterparty that the client’s own documents are false does not advance the client’s objective in the deal. Implied authorization will rarely carry a lawyer past the prohibition, so the contest is usually over consent and the exceptions.

The prohibition holds when none of the three routes is open, and immigration practice shows how uncomfortable that can be. A lawyer who learns in the course of representing a client that the client’s marriage to a citizen was arranged to obtain permanent residence holds a client confidence. Reporting it could cost the client resident status and expose the client to prosecution, fines, removal, and a bar on readmission, so without consent or an exception the lawyer appears unable to disclose it without violating the Model Rules.¹⁰ The same lawyer remains forbidden to make a false statement of material fact to the authorities, so the lawyer is caught between a rule against speaking and a rule against speaking falsely.¹¹ The carve-out resolves that squeeze only on the disclosure side. The lawyer who may not reveal the client’s secret still may not put falsehoods in front of the other side.

A lawyer for whom the carve-out controls still has things to do, because the clause removes only the duty to disclose. The ban in paragraph (a) on knowingly making a false statement of material fact still applies, so the lawyer who may not speak may not lie either. Withdrawal also remains available, and the comment to Rule 1.16 treats it as justified where the client persists in a course of action the lawyer reasonably believes is criminal or fraudulent, and where the lawyer’s services were used in the past, even if leaving would materially prejudice the client.¹² Where withdrawal alone would leave the lawyer’s earlier work still deceiving its recipient, the noisy withdrawal described above is the next step, because it announces the withdrawal and disaffirms the lawyer’s own work without narrating the client’s secrets.

The carve-out is not a safe harbor. It is a feature of the disciplinary rule and does not rewrite the criminal law. In United States v. Maniego the Second Circuit affirmed the conviction of a lawyer whom a jury found had knowingly prepared immigration documents based on fraudulent marriages, and in United States v. Zalman the Sixth Circuit affirmed the conviction of a lawyer who failed to disclose a fraudulent marriage.¹³ Those decisions apply criminal statutes rather than Rule 4.1(b), but they show that the ethics carve-out does not control what criminal law demands of a lawyer whose own work or silence is part of the deception.

The carve-out is also only as firm as Rule 1.6 itself. The exceptions in Rule 1.6(b) are permissive, so a lawyer may disclose but need not, and either choice draws no discipline under Rule 1.6. Where an exception applies, Rule 1.6 no longer prohibits the disclosure, and the paragraph (b) duty is no longer excused.¹⁴ Each exception reaches only as far as is reasonably necessary to its purpose, a ceiling that carries over to whatever the lawyer discloses.¹⁵ New exceptions aimed at client wrongdoing have drained some, perhaps most, of the force from the confidentiality qualification, as the next subsection shows.¹⁶ Rule 4.1(b) is one of several rules whose operation depends on confidentiality. Rule 3.3, by contrast, requires remedial measures that may include disclosing information otherwise protected by Rule 1.6, which matters when the audience is a tribunal rather than a counterparty.¹⁷

How Exceptions Narrow the Carve-Out

Rule 4.1(b) excuses a lawyer from disclosing a material fact only when “disclosure is prohibited by Rule 1.6,” and the word prohibited is what lets the exceptions inside Rule 1.6 reach back into this rule.¹⁹ Those exceptions are written as permissions: in the situations they describe, a lawyer may reveal confidential information but need not.²⁰ A lawyer who is permitted to reveal information is not forbidden to reveal it, so wherever an exception applies, the prohibition on which the carve-out depends has disappeared. The logic has four links. Paragraph (b) imposes its duty unless Rule 1.6 prohibits disclosure; Rule 1.6(b) permits disclosure in certain situations; a permitted disclosure is not a prohibited one; so in those situations the duty to disclose returns. Read together, Rule 4.1(b) and the exceptions in Rule 1.6(b)(2) and (3) effectively require disclosure of confidential information in narrow circumstances, even though the exceptions themselves leave the choice to the lawyer.²¹

The change is easiest to see against what the confidentiality rule used to say. In In re Enron Corp. Securities, Derivative & ERISA Litigation, the court set out the 2001 version of Model Rule 1.6, which let a lawyer reveal client information only to prevent a criminal act likely to cause imminent death or substantial bodily harm, or to establish a claim or defense in a dispute over the lawyer’s own conduct.²² A lawyer who learned that a client was using the lawyer’s documents to take someone’s money had no exception to invoke under that text, because a scheme that threatens only financial loss is neither a threat of bodily harm nor an accusation against the lawyer. Rule 1.6 therefore prohibited the disclosure, paragraph (b) yielded, and the duty to disclose had almost nothing to operate on in financial-fraud cases. The conflicting obligation to protect client confidences had long limited the duty under paragraph (b), and for financial fraud that limit once did most of the work.²³

The American Bar Association revised the Model Rules in 2003, after years of debate and amid a widely held belief that lawyer misconduct had played a part in the Enron and WorldCom accounting scandals.²⁴ Before the revision, the client-crime exception in Rule 1.6(b) had reached only disclosures needed to prevent death or substantial bodily harm.²⁵ The revised rule added two exceptions aimed at financial wrongdoing, which a student should be able to state from memory:

• Rule 1.6(b)(2) permits disclosure to prevent the client from committing a crime or fraud that is reasonably certain to cause substantial injury to another’s financial interests or property, when the client has used or is using the lawyer’s services in furtherance of it.²⁶
• Rule 1.6(b)(3) permits disclosure to prevent, mitigate, or rectify substantial injury to another’s financial interests or property that is reasonably certain to result, or has already resulted, from a client’s crime or fraud in furtherance of which the client has used the lawyer’s services.²⁷

Each exception carries three conditions that decide when it applies. The injury must be substantial, reasonably certain, and financial or to property. The underlying conduct must be a crime or fraud. And the client must have used the lawyer’s services in furtherance of it. The second exception also reaches injury that has already occurred, so a lawyer who discovers the fraud after the third party has relied on the lawyer’s documents can still use it. The services condition explains who the amendment helps: a lawyer whose own work carried a fraud to its victims is the lawyer who, under the older text, would have had to watch those victims lose money in silence. That is also the lawyer paragraph (b) has in view, since the assistance element of Rule 4.1(b) looks for a lawyer whose services have been drawn into the wrongdoing. The two rules converge on one group of lawyers, and confidentiality stays intact for a lawyer whose services were never involved.

An exam stem that gives a lawyer knowledge of a client’s fraud thus invites two questions beyond the elements of paragraph (b): how serious is the injury to the victim, and did the client use this lawyer’s services to cause it?

The size of the injury carries the difference between those two scenes, because the exceptions reach only substantial injury. The services condition has its own failing side. A lawyer retained only after the fact to answer charges of misconduct has no paragraph (b) duty at all, and the same lawyer could not invoke Rule 1.6(b)(2) or (3), because the client did not use that lawyer’s services in the fraud.²⁸

Two further exceptions in Rule 1.6 shrink the carve-out beyond the financial-injury pair. The 2003 revision also added an exception permitting disclosure to comply with other law, which includes the laws of fraud and criminal complicity, and a lawyer has long been able to use confidential information to defend against a charge of wrongdoing.²⁹ The other-law exception matters here because the commentary to Rule 4.1 recognizes that in extreme cases substantive law may require a lawyer to disclose information in order to avoid being deemed to have assisted the client’s crime or fraud.³⁰ When outside law demands the disclosure, complying with that law is itself an exception, so Rule 1.6 cannot prohibit what the other law requires. The self-defense exception already appeared in the 2001 text, which allowed a lawyer to answer a criminal or civil charge based on conduct in which the client was involved.³¹ A lawyer whose services helped carry a fraud is exposed to being charged as a participant, so this exception tends to be available in the same situations in which paragraph (b) asks whether disclosure is necessary. The combined effect is that ever fewer circumstances remain in which a conflicting duty of confidentiality constrains the disclosure duty.³²

A lawyer who relies on the permissive wording of Rule 1.6(b) to stay silent therefore risks discipline under paragraph (b) if disclosure was in fact necessary to avoid assisting the client’s fraud.³³ That warning does not mean confidentiality has given way across the board. The exceptions remain few and narrowly drawn, each lets the lawyer reveal information without client consent only in cases of necessity and only to avoid or remedy reasonably certain and significant harm, and the presumption still stands against disclosure.³⁴ The practical course follows from that tension. Rule 1.6(b)(4) allows a lawyer to reveal information in order to secure advice about compliance with the rules, and except in emergencies a lawyer is well advised to consult other counsel before disclosing a client confidence without the client’s consent.³⁵ Once the facts show that an exception applies, the same caution favors using it over resting on a formal argument that paragraph (b) does not require disclosure, because a lawyer who fully separates from the client’s wrongdoing reduces the chance of being charged, even mistakenly, with complicity.³⁶

Privilege Versus Confidentiality

Rule 4.1(b) can require a lawyer to disclose a material fact that Rule 1.6 would otherwise keep secret, and the facts at issue almost always reached the lawyer through the client’s own statements.³⁸ That invites a confusion between two protections that share a vocabulary of secrecy but do different jobs: the lawyer’s ethical duty of confidentiality and the evidentiary attorney-client privilege. In narrow circumstances Rules 3.3 and 4.1 require a lawyer to reveal information, including information that is otherwise confidential under Rule 1.6, when necessary to prevent or correct a client’s fraud on a tribunal or another person.³⁹ The question here is what such a revelation does to the privilege, and in particular whether a lawyer who must speak to a defrauded counterparty can also be made to testify against the client.

The two protections differ first in what they cover. Confidentiality under Rule 1.6(a) reaches all information the lawyer holds that relates to the representation, which includes the lawyer’s communications with the client and extends well beyond them.⁴⁰ The privilege attaches to a smaller set, the communications between lawyer and client that are entitled to immunity from legal process and so cannot be offered in evidence against the client.⁴¹ Each protection trades breadth against strength. Confidential information is defined broadly, is subject to several exceptions, and may carry no immunity from legal process at all, while privileged information is defined narrowly, is subject to fewer exceptions, and does supply immunity from compelled disclosure.⁴² The difference in function explains the difference in shape. Confidentiality is a conduct rule that tells the lawyer what must stay private, so it has to reach everything learned in the matter. The privilege is an evidence rule that shields a client from being forced to supply proof against himself through his own lawyer, so it is confined to the communications that purpose requires.

Because privileged communications sit inside the larger body of confidential information, the next question is whether an ethics exception that lifts confidentiality also reaches the privileged subset. For limited purposes, and by generally non-evidentiary means, it does.⁴³ The reason is practical. The most important information in a representation usually comes from the client’s communications or is bound up with them, so an exception that stopped at the edge of the privileged subset would accomplish almost nothing. A lawyer who learns that a client is using the lawyer’s closing documents to deceive a buyer has learned it from the client, and any warning to the buyer necessarily shares what may be a privileged communication.⁴⁴ Rule 4.1(b) would be a dead letter if privilege could block the very disclosures it contemplates.

The permission runs only to disclosure for the purpose the exception serves, and it stops short of testimony. The exceptions to confidentiality in the ethics rules are not exceptions to the privilege, because the privilege protects against legally compelled evidence, and the ethics rules cannot direct that attorney-client communications be introduced in a proceeding or inquired into through compulsory process.⁴⁵ Unless an ethics exception happens to line up with a recognized exception to the privilege, the lawyer may disclose only in the manner and to the extent needed to prevent or correct the harm, and may not give evidence against the client.⁴⁶ The structure makes sense once you see what each side is solving. The ethics exceptions respond to the problem of stopping or undoing serious harm, and a warning, a retraction, or a corrected document does that work. Testimony in a later proceeding serves a different goal, proof of what happened, and the privilege exists to keep that goal from being pursued through the client’s own lawyer. If every permitted warning also made the lawyer a prosecution witness, clients who grasped the risk would stop telling their lawyers the truth.

The privilege has its own way of failing, and when it does the result changes. A client who solicits the lawyer’s information and services to facilitate a crime or fraud forfeits the privilege under the crime-fraud exception, because the client has perverted the relationship toward an illegitimate end and so cannot claim the protection the relationship exists to provide.⁴⁷ What counts is the client’s use of the legal services to advance or conceal the wrongdoing, which is enough with or without the lawyer’s knowledge.⁴⁸ The party seeking the communications carries the burden of a prima facie showing that they were in furtherance of an intended or present illegality, along with some relationship between the communications and that illegality, and after-the-fact evidence of the crime or fraud does not suffice.⁴⁹ Significant confusion remains about the standard of proof needed to defeat the privilege on this ground; in grand jury proceedings in particular, courts have kept the traditional prima facie standard even after Zolin.⁵⁰ Once the exception applies, the privilege no longer shields those communications, and the lawyer who was permitted or required to disclose can be called to testify about them.⁵¹

The line follows the client’s conduct, which is why a lawyer with a Rule 4.1(b) problem does not automatically have a crime-fraud problem for every communication. A client who retains a lawyer to defend against past wrongdoing keeps the privilege, and a client’s announcement of an intended crime does not remove it when the communication does not itself exploit the representation to advance the crime.⁵² In that second setting the lawyer may be free, and in some states required, to warn the target or law enforcement under the ethics rules, yet the privilege continues to keep the lawyer off the witness stand about the communication.⁵³ A client who asks whether a proposed course of action would be lawful is likewise seeking the legal advice the privilege exists to encourage, even if the lawyer concludes that the plan would be fraudulent.⁵⁴

An exam question that mixes disclosure and testimony therefore calls for two separate inquiries, run in order. The first asks what the lawyer may or must reveal to avoid assisting the fraud, which Rule 4.1(b) answers together with Rule 1.6 and its exceptions. The second asks whether the lawyer can be compelled to give evidence, which the privilege and its exceptions answer, and the answer is no unless the privilege itself has failed. Two errors come from merging them. One treats a permitted or required disclosure as a waiver of the privilege or an invitation to testify. The other assumes that the privilege excuses the lawyer from a Rule 4.1(b) duty, even though the ethics exceptions apply to privileged communications for non-evidentiary disclosure.⁵⁵

State Variations

Rule 4.1(b) excuses a lawyer from disclosing a material fact when “disclosure is prohibited by Rule 1.6,” and that clause takes its content from whichever version of the confidentiality rule the lawyer’s own jurisdiction has adopted.⁵⁷ The Model Rules serve as a template, and each jurisdiction adopts its own text, so the boundary of the carve-out is not the same everywhere. The effect runs in a predictable direction. A state whose confidentiality rule permits or requires lawyers to reveal client crime or fraud more broadly than the Model Rule leaves less for Rule 1.6 to prohibit, so the duty in that state’s version of paragraph (b) applies more often. A state whose rule is stricter leaves the carve-out intact in more cases, and a lawyer caught by it is limited to withdrawing and, where necessary, disaffirming earlier work. The earlier parts of this chapter used the current Model Rule 1.6 as the baseline, so what follows asks how far a state may sit from that baseline and what the distance does to the analysis.

The 2003 revision of Model Rule 1.6 brought it closer to the rule most states already followed, and the remaining variation sits at the two ends of a spectrum.⁵⁸ The positions are these:

• The vast majority of states permit disclosure of client crime or fraud in terms close to the revised Model Rule, so the carve-out there resembles the one described earlier.⁵⁹
• California, Washington, and the District of Columbia continued to prohibit a lawyer from telling outsiders that a client is about to engage in illegal conduct, so Rule 1.6 prohibits disclosure there in situations where the Model Rule would permit it.⁶⁰
• New Jersey and Florida require a lawyer to disclose client confidences to prevent certain criminal acts, so Rule 1.6 itself compels what paragraph (b) would otherwise ask.⁶¹

Those groupings describe the landscape after the 2003 revision and shift whenever a state amends its rules, which is why an exam that turns on a particular state will supply the text to apply.

New Jersey shows a state in which the carve-out gives way. In A. v. B., a New Jersey firm that represented a husband and wife in estate planning learned, while representing another woman in a paternity action against the husband, that he had an illegitimate child he had concealed from both his wife and the firm.⁶² Estate planning exists principally to honor the client’s intent about who gets what, and when, which is why the husband’s concealment mattered to the firm’s work for the couple.⁶³ The court held that New Jersey’s mandatory-disclosure provision did not apply, because the possible inheritance of the wife’s estate by the child was too remote to be a substantial injury to her financial interest or property.⁶⁴ It then held that a separate provision permitting disclosure to rectify the consequences of a client’s fraudulent act in furtherance of which the firm’s services had been used did cover the case, and it read the word fraud expansively by borrowing from the crime-fraud exception to the attorney-client privilege. The husband’s deliberate decision to hide the child counted as a fraud on his wife. The decision dates from 1999 and construed New Jersey’s Rule 1.6, not Rule 4.1(b), and the person who needed the information was a co-client rather than a stranger to the representation. It illustrates only how a state’s confidentiality rule can leave nothing for the carve-out to protect. The court also compared New Jersey’s rule with the Model Rule of that time, which allowed disclosure only to prevent imminent death or substantial bodily harm and never required it.⁶⁵ That comparison is dated, because the Model Rule’s later exceptions for financial fraud closed part of the gap. Some distance remains, since the New Jersey permission as the court quoted it states no threshold of substantial injury, while Model Rule 1.6(b)(3) does.

The difference between that lawyer and the New Jersey firm comes entirely from the state’s confidentiality rule. A New Jersey-style permission would leave nothing for Rule 1.6 to prohibit, and the lawyer would return to the question whether notice and disaffirmance are enough or whether more must be said. A second source of variation is the wording of paragraph (b) itself. The Kansas version, which a Kansas disciplinary decision quotes, excuses disclosure when it is “prohibited by or made discretionary under Rule 1.6.”⁶⁶ That decision, In re Gamble, 338 P.3d 576 (Kan. 2014), is useful here only for the text it quotes. Read on its face, that wording widens the carve-out. Under the Model Rule text, an exception in Rule 1.6(b) that permits disclosure means Rule 1.6 no longer prohibits it, so the duty returns. Under the Kansas text, a disclosure that Rule 1.6(b) merely permits is by definition discretionary, so the duty does not arise and the choice stays with the lawyer. The two wordings agree wherever Rule 1.6 forbids disclosure and diverge exactly where the narrowing exceptions described earlier operate.

At the other end of the spectrum, some states let the confidentiality rule itself compel disclosure. In Balla v. Gambro, Inc., an Illinois decision applying that state’s rules while they were new, the court quoted Illinois Rule 1.6(b) as providing that a lawyer “shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily injury.”⁶⁷ The court used that mandate to explain why extending the tort of retaliatory discharge to in-house counsel was unnecessary, because the rules already required counsel to report an employer’s plan to sell dialyzers alleged to be misbranded or adulterated. Florida’s rule, as described in the Florida Supreme Court’s 2009 order amending its rules, likewise requires a lawyer to reveal information the lawyer reasonably believes necessary to prevent a client from committing a crime.⁶⁸ Information that a state’s Rule 1.6 requires a lawyer to reveal is information that Rule 1.6 cannot prohibit the lawyer from revealing, so the carve-out never shields it. The Illinois rule concerns physical harm and reaches fewer situations than the financial-fraud exceptions, but the logic for paragraph (b) is the same.

Two older sources show how jurisdictions draw the threshold differently, and both come from predecessor codes or proposed rules. In 1995, Massachusetts’s highest court, in GTE Products Corp. v. Stewart, listed the predecessor code’s permission to reveal a client’s intention to commit a crime and the information needed to prevent it, and added that an attorney must, to the extent confidentiality permits, reveal information about a fraud the client committed in the course of the representation.⁶⁹ That duty was itself subject to confidentiality, the same structure paragraph (b) has today. A 1997 footnote in Purcell v. District Attorney contrasted the code’s permission to disclose a known intention to commit any crime with a then-proposed rule that would reach only acts threatening death, substantial bodily harm, or substantial financial injury, and would turn on the lawyer’s reasonable belief rather than a known intention.⁷⁰ A federal court’s 2002 description of Texas’s rules in In re Enron Corp. Securities, Derivative & ERISA Litigation shows a middle design. Texas permitted disclosure when the lawyer had reason to believe it necessary to prevent a client’s criminal or fraudulent act, required it only where confidential information clearly established a likely act causing death or substantial bodily harm, and otherwise made the lawyer’s first obligation an effort to dissuade the client, with withdrawal required if the client persisted or had used the lawyer’s services.⁷¹ These are snapshots of drafting choices from their own periods, so treat them as illustrations of variation and not as statements of the current Model Rule or of current Massachusetts or Texas law.