Fill in the blank: Rule 1.6 of the Vermont Rules of Professional Conduct prohibits a lawyer from revealing __________________.
Did you guess “client confidences”? Guess again.
Did you guess “confidential or privileged information”? Guess again.
Did you guess “a client’s confidences and secrets”? Umm, 1999 is calling and wants its version of the rule back.
The answer: “information relating to the representation of a client.”
So what’s that mean? Let me share some thoughts.
…….brief interlude: I intend to post on client confidences often in the next month. Today’s post is a primer, to make sure everyone takes a look at the rule we’re going to be discussing. Now, back to our regularly scheduled blawging……
Rule 1.6 encompasses much more than information covered by the attorney-client privilege and information disclosed in confidence. Indeed, the rule “applies not only to matters communicated in confidence by the client, but to all information relating to the representation, whatever its source.” V.R.Pr.C. 1.6, Comment .
As with anything and everything in which lawyers are involved, there are exceptions. The two obvious ones: a lawyer may reveal information relating to the representation if the client gives informed consent and a lawyer may reveal information when impliedly authorized to do so in order to carry out the representation.
The other exceptions are the mandatory disclosures required by paragraph (b) and the permissive exceptions allowed by paragraph (c). For mandatory, think “lawyer knows client is about blow up a stadium filled with 80,000 people.” For permissive, think “lawyer may disclose information relating to the representation in response to a malpractice claim filed by the client.”
But as exceptions go, those are about it.
I cannot stress this enough: “but it’s public knowledge” is NOT one of the listed exceptions to Rule 1.6. One might argue that it is impossible “to reveal” information that is “public knowledge.” Maybe. But, is a disciplinary hearing really the time you want to test your interpretation of the rules? Again, “information that is public knowledge” is not one of the listed exceptions.
This point is highlighted near the end of one of the most informative posts I’ve seen on Rule 1.6. The post is HERE.
My experience has been that Rule 1.6 violations do not occur in the ways we discuss at CLE seminars. Yes, seminars about encrypting email and cloud storage are interesting and thought-provoking. But you know what leads to Rule 1.6 violations? A lack of common sense.
To wit: the last three sanctions for violations of Rule 1.6 in Vermont were imposed:
- for leaving a client file in the hallway for the client to pick up;
- for disclosing to a new client too much information about an old client’s case; and
- for selling a work computer.
My guess is that far more lawyers have put information related to a representation at risk by leaving files or computers in restaurants or airport waiting areas than by sending unencrypted emails or storing information in the cloud.
I’ll be back to Rule 1.6 over the next few weeks. For now, I’ll end by paraphrasing Thomas Edison: as you go through life, you’ll have plenty of opportunities not to talk about your cases. Take advantage of them all.
Oh, and for those of you new to the blog, the post people liked the most was on technology and social media. It’s HERE