Client confidences and Rules 1.6 & 1.9 are a favorite topic of mine. Before we get to them, there’s still time to vote in yesterday’s poll. The early returns are running to “yes”, by a 2-1 margin.
The topic most frequently raised in the inquiries I receive is “conflicts of interest.” Next: client confidences, in particular “what can I say?” Lawyers often mention “It’s public, so I can talk about it now.”
As Lee Corso would say, not so fast my friends.
I’ve blogged on this HERE.
Rule 1.6 prohibits a lawyer from disclosing information relating to the representation. The prohibition is broader than the attorney-client privilege, covering all information relating to the representation, no matter the source. See, Comment 3.
Rule 1.6 includes several exceptions to the general prohibition. “It’s public” is NOT one of the exceptions.
Rule 1.6 applies during a representation. Once a representation ends, Rule 1.9(c) kicks in.
Rule 1.9 prohibits using information relating to the representation of a former client to that client’s disadvantage unless the information has become “generally known.” Numerous courts and ethics opinions have stated that the mere fact that information is public does not mean that it’s “generally known.” Rule 1.9(c)(1).
The rule also prohibits revealing information relating to the representation of a former client “except as these rules would permit or require with respect to a client.” Rule 1.9(c)(2). Again, no rule permits a lawyer to disclose otherwise confidential information “because it’s public.”
The California State Bar Standing Committee on Professional Responsibility & Conduct is the most recent to chime in, issuing Formal Opinion 2016-195. The Golden State’s rules are a bit different than Vermont’s. However, the Cal State Bar Committee drew a clear distinction between information that is “generally known” and information that is “publicly available.” See, footnote 4.
Per the Committee, “generally known” information is info that “most people already know without having to look for it.” By contrast, “publicly available” information is info that “is available to those outside the attorney-client relationship, although it must be searched for (e.g., in an internet search, a search of a public court file, or something similar).” See, footnote 4.
Remember: “public” & “publicly available” are not the same as “generally known.”
As usual, thank you to Samson Habte & Joan Rogers at Bloomberg BNA for bringing the California Opinion to my attention.