Client Confidentiality

The duty is broader than privilege

Model Rule 1.6 generally prohibits a lawyer from revealing information relating to a client’s representation unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or a listed exception applies. The source of the information does not control: a fact learned from a witness, public document, or opposing party can still relate to the representation. The duty continues after the representation ends.

For an MPRE question, first identify the lawyer, client, representation, information, and proposed recipient. Then ask whether disclosure is necessary to perform the work, expressly authorized, or within a particular exception. Do not begin with whether a statement is technically privileged. Privilege is a narrower evidence doctrine about certain communications; Rule 1.6 covers much more.

What counts as information relating to a representation

Rule 1.6 does not limit protected information to confidences the client directly told the lawyer. It can include the existence of the representation, the client’s identity, facts learned in investigation, legal advice, documents from another source, and information that would reveal a client’s strategy. Whether a detail relates to a matter is a context question. If disclosure could reveal information connected to the work, treat it as covered unless an authorization or exception permits disclosure.

A lawyer may not use a client’s story as a teaching anecdote simply because names are omitted. If the setting, unusual facts, date, or public event make the client recognizable, the lawyer may be revealing information. Effective anonymization must prevent identification, and the lawyer should consider whether the story itself belongs to a confidential consultation.

Rule 1.6 also requires reasonable efforts to prevent inadvertent or unauthorized access. That duty applies to conversations, paper files, email, cloud storage, devices, and people who assist the lawyer. A lawyer should use reasonable safeguards suited to the sensitivity of the information and the likelihood of exposure. The rule does not demand perfect security, but carelessness is not an exception.

Permission to disclose and disclosure required by another law

The client may give informed consent to disclosure. The lawyer must explain the material information and its consequences well enough for the client to make an informed choice. Consent to discuss a matter with one lender does not automatically authorize sending the entire file to every potential investor.

Some disclosure is impliedly authorized when reasonably needed to carry out the representation. A lawyer may share relevant information with firm staff working on the case, or communicate facts to opposing counsel while negotiating, when that communication is within the task the client retained the lawyer to perform. Implied authorization is bounded by the client’s objectives and reasonable expectations. It is not a license to reveal extra facts for convenience.

Rule 1.6(b)(6) permits disclosure to comply with other law or a court order. If a subpoena or order seeks protected material, the lawyer should assess whether it is legally binding, assert nonfrivolous objections or seek protection when appropriate, and disclose only what the law requires after the issue is resolved. The existence of a request does not itself erase confidentiality. Separate evidentiary privilege may give the client grounds to resist production even when the ethics rule permits compliance with a final lawful order.

The main Rule 1.6 exceptions

The ABA Model Rule says a lawyer may reveal information to the extent the lawyer reasonably believes necessary in specified circumstances. The permission is limited to what is reasonably necessary. It does not require the lawyer to disclose whenever an exception is available, and state rules may use different language or conditions.

Preventing death or serious bodily harm

A lawyer may reveal information to prevent reasonably certain death or substantial bodily harm. The threatened harm need not arise from a crime in which the lawyer’s services were used. For example, a client tells defense counsel of a concrete plan to poison a neighbor that evening. If counsel reasonably believes serious harm is imminent, Rule 1.6(b)(1) permits a limited warning to the person or authorities able to prevent it. A distractor that requires the client to have used legal services to plan the attack borrows a requirement from a different exception.

Preventing or mitigating specified financial harm

The financial-harm exception is narrower. It applies when the lawyer reasonably believes disclosure is necessary to prevent the client from committing a crime or fraud that is reasonably certain to cause substantial financial or property injury to another, and the client has used or is using the lawyer’s services in furtherance of it. The requirement that the client use the lawyer’s services matters.

Suppose a client asks counsel to prepare closing papers that conceal a forged lien release and thereby induce a buyer to pay for property free of the lien. If the lawyer’s services are being used to advance the fraud, Rule 1.6(b)(2) may permit necessary disclosure to prevent the substantial loss. If the client tells the lawyer about a completed fraud in which the lawyer played no role, this paragraph does not automatically authorize disclosure. Consider the separate exception for preventing or mitigating harm from a crime or fraud in which the lawyer’s services were used.

Under Rule 1.6(b)(3), a lawyer may disclose information to prevent, mitigate, or rectify substantial financial or property injury resulting from a client’s crime or fraud in which the lawyer’s services were used. This can apply after the conduct has begun or caused harm. The lawyer must still have a reasonable belief that disclosure is necessary and keep it within the exception’s scope.

Legal advice, self-defense, and lawyer changes

A lawyer may reveal information to obtain legal advice about complying with the Rules. The disclosure should go to a person positioned to provide that advice and should be limited to what is needed. A lawyer may also disclose information to establish a claim or defense in a dispute with a client, defend against a criminal charge or civil claim based on the lawyer’s conduct, or respond to allegations concerning the representation. This does not authorize a public airing of the entire file when a focused response will do.

Rule 1.6(b)(7) permits limited disclosure to detect and resolve conflicts arising from a lawyer’s change of employment or changes in a firm’s composition or ownership. It is available only if the information would not compromise privilege or otherwise prejudice the client. The lawyer should normally disclose only names, a brief description of the matter, and information needed for the conflict check, not substantive strategy or sensitive facts.

Former and prospective clients

The duty does not expire when the matter ends. Rule 1.9(c) restricts a former lawyer from using information relating to the former representation to the former client’s disadvantage, except as the Rules permit or when the information has become generally known. It also prohibits revealing that information, subject to the Rule 1.6 exceptions.

Rule 1.18 protects a person who consults about possibly forming a lawyer-client relationship, even if the lawyer is never hired. The lawyer may not use or reveal information learned in the consultation except as Rule 1.9 would allow for a former client. A prospective client conflict can also restrict later work if the lawyer received information that could be significantly harmful in the same or a substantially related matter. Screen and consent rules may address imputation, but do not erase the original lawyer’s duty.

Worked examples

The client’s identity is sensitive

A lawyer represents a public official in a private employment investigation. At a conference, an attendee asks whether the official is a client. The official has not authorized confirmation, and the representation is not public. The lawyer should not confirm it merely because the attendee already suspects the answer. The client’s identity and existence of the representation can be information relating to the work.

The client wants a narrow disclosure

A client authorizes counsel to tell a lender that litigation is pending but not to describe the client’s negotiating position. Counsel can make the authorized statement. Sending the lender the complete settlement analysis would exceed consent. The fact that the lender asked for more does not broaden the permission.

A public record is not a free pass

A lawyer learns through the case that a client owns a particular property. The deed is publicly searchable. Public availability does not automatically make every fact generally known or remove Rule 1.6 protection while the representation is ongoing. The lawyer should not volunteer the information to a reporter. For former clients, Rule 1.9(c) separately uses the “generally known” limitation for certain use restrictions.

A client threatens a serious injury

A client says that tomorrow he will sabotage a worksite machine while a named operator is using it. Counsel has no role in planning the act. The lawyer may disclose information reasonably necessary to prevent the substantial bodily harm. The exception does not require the lawyer to wait until the client uses legal services to carry out the plan.

A business fraud uses counsel’s work

A business client instructs counsel to prepare a certificate falsely stating that a safety inspection occurred, so a buyer will release payment. Counsel’s document would further a substantial fraud. If the rule’s conditions are met, limited disclosure may be permitted to prevent or mitigate the financial injury. Counsel should also stop assisting the fraud and consider withdrawal. Do not treat ordinary nonpayment or a private contractual breach as automatically satisfying the crime-or-fraud exception.

A reliable MPRE method

Use this sequence when an answer choice proposes disclosure:

• Identify whether the fact relates to the representation, even if someone else supplied it.
• Determine whether the client expressly consented or disclosure is impliedly needed to carry out the work.
• If neither applies, name the exact Rule 1.6 exception and test every condition.
• Separate “may disclose” from “must disclose.” The exception usually grants permission; another rule or law can create a duty.
• Limit any disclosure to what the authorization, exception, or order permits.
• Check whether a separate privilege or court rule also protects the communication.

Do not assume a wise practical step is automatically required by the Model Rule. An answer can be prudent without being mandatory. Conversely, a client’s wish to keep information secret does not defeat an exception that applies, or an independent obligation such as candor to a tribunal.