Hey Lawyers! STFU!!!

So, for those of you still adjusting to the interwebs, that headline is what we call “clickbait.”

And here you are.  Keepers, I hope.

But, seriously lawyers, shut up!

I’m talking about client confidences and the duty not to reveal “information relating to the representation” of a client.

The rule is Rule 1.6. For those of you averse to clicking on the hyperlink due to my repeated warnings about scams inviting you to do so, I applaud the effort, but frown upon your tech competence. Anyhow, here’s the language you need to remember:

  • “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is required by paragraph (b) or is permitted by paragraph (c).”

Let’s look at it a bit differently.  Per the rule, a lawyer may “reveal information relating to the representation of a client” if:

  • the client gives informed consent to disclosure; or,
  • disclosure is impliedly authorized to carry out the representation; or,
  • disclosure is required by paragraph (b); or,
  • disclosure is permitted by paragraph (c).

Now, please click on this and review paragraphs (a), (b), and (c).  As you do, I want you to think of, and be prepared to tell me, the two things that you will raise as defenses to a disciplinary complaint and that I will tell you DO NOT APPEAR in either paragraph.

Are you ready?

Here they are:

  1. But Mike, the information I revealed wasn’t privileged.
  2. But Mike, the information I revealed is a matter of public record.

My responses:

  1.  Did you read the rule? It says that you “shall not reveal information relating to the representation of a client unless the client gives informed consent [or] the disclosure is impliedly authorized to carry out the representation . . . ”  As made clear by Comment [3], the duty not to reveal “information relating to the representation” encompasses far more information than is covered by the attorney-client privilege. It encompasses “all information relating to the representation, whatever its source.” (emphasis added)
  2. Where in paragraph (a), (b), or (c) does it say that a lawyer may reveal “information that is public record?”  Hint – you don’t need to go back and look.  The answer is “nowhere.”  In other words, “it’s public record” is not the same as:
  • the client providing informed consent; or,
  • information that is impliedly authorized to be revealed in order to carry out the representation; or,
  • one of the disclosures mandated by paragraph (b); or,
  • one of the disclosures permitted by paragraph (c),

Rather, it remains “information relating to the representation” that a lawyer “shall not reveal.”

Lawyers seem to get hung-up on the “public record” thing.  No need to get hung-up.  As I just said, the rule makes it very, very clear: “it’s public record” is not one of the exceptions to “a lawyer shall not reveal information relating to the representation.”

Of course, this almost never comes up with “current clients.” In my experience, lawyers seem to think that they can disclose information relating to the representation of a former client if the information is in the public record.

Nope.

Please look at Rule 1.9(c)(2).

Still click averse? Fine.

  • “A lawyer who has formerly represented a client in a matter . . . shall not reveal information relating to the representation except as these rules would permit or require, or when the information has become generally known.”

The rules do not require or permit lawyer to reveal information merely because it has become a matter of public record.  Further, the fact that information is “public record” does not necessarily mean that it has become “generally known.”  There is plenty of authority for the proposition that “public record” does not equal “has become generally known.” I’ve listed a few cases at the end of this post.  For now, I’ll start with this:

Vermont’s Rule 1.6 is derived from ABA Model Rule 1.6.  The model rule expresses “the basic principle of professional ethics that all information `relating to’ a lawyer’s professional relationship with a client is presumptively confidential and must not be disclosed unless an exception applies.”  1 Hazard & Hodes, The Law of Lawyering (3d Ed.2001) 9-52, Section 9.15.

Or, think about it this way:

  1. 25 years ago, you represented me in a divorce. The case went to a trial and the evidence, including my own testimony, established that I had an affair.
  2. Now, in 2017, I’m running for public office, or, applying for a job and I listed you as a reference.  You tell a voter or my prospective employer “i’d never support someone who had an affair.”

Good luck with your “but it’s in the public record!” defense to my ethics complaint.

I’ve mellowed since I typed the headline.  So, I’ll conclude with this:

“Hey Lawyers! Be Quiet.”

But . . .

STFU

UPDATE – OCTOBER 5, 2017 

A few cites:

Most recently, take a look at, Dougherty v. Pepper Hamilton LLP, 133 A.3d  792 (2016), 2016 PA Super 23.  A thorough and relevant analysis begins on page 798. The court quotes the Restatement 3d, which includes the following language: “the fact that information has become known to some others does not deprive it of protection if it has not become generally known in the relevant sector of the public.”  Restatement (Third) of the Law Governing Lawyers § 59, cmt. d.

Akron Bar Ass’n v. Holder, 102 Ohio St. 3d 307 (2004). The case was decided under the Ohio rule that prohibited the disclosure of a client’s “confidendences & secrets.”  Some of you might remember that “confidences & secrets” are what we were required to keep confidential when Vermont followed the Code. We switched to the Rules in 1999.  In any event, after noting that its standard was “less encompassing than that in [ABA] Model Rule 1.6(a),” the Ohio court stated that “[t\here being an ethical duty to maintain client secrets available from sources other than the client, it follows that an attorney is not free to disclose embarrassing or harmful features of a client’s life just because they are documented in public records or the attorney learned of them in some other way.” 102 Ohio St. 3d (306, paragraphs 38-39). Again, the Ohio rule is encompasses less than the rule on which Vermont’s rule is based.

Here’s another: Lawyer Disciplinary Board v.McGraw, 461 S.E.2d 850 (W.Va. 1995).  The Moutaineer Supreme Court stated that “[t]he ethical duty of confidentiality is not nullified by the fact that the information is part of a public record or by the fact that someone else is privy to it.” Id. at 861-862.

Finally, I concede that the Restatement is not as restrictive as my take in the blog post.  Here’s more language from the Restatement:

  • Whether information is generally known depends on all circumstances relevant in obtaining the information. Information contained in books or records in public libraries, public-record depositaries such as government offices, or in publicly accessible electronic-data storage is generally known if the particular information is obtainable through publicly available indexes and similar methods of access. Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense. Special knowledge includes information about the whereabouts or identity of a person or other source from which the information can be acquired, if those facts are not themselves generally known.”

Still, as a lawyer, I’d be wary.  Arguably, “special knowledge” includes “I’m the only person who knows or remembers that there’s something in the public record about my former client.”

 

5 thoughts on “Hey Lawyers! STFU!!!

    • The conflict analysis is so fact-specific that I find it difficult to say ahead of time whether a particular conflict is or is not waivable. Generally, any conflict is waivable if the terms of Rule 1.7(b) are met. The key likely being 1.7(b)(1) and whether it’s reasonable to conclude that each affected client will receive competent & diligent representation. I think it best to avoid any situation in which one client might later say, with some reason, “you didn’t do your best for me because you were looking out for the other.” And don’t let advance waivers & “informed consent” lead to a false sense of security. Lots of people are happy to waive anything ahead of time. It’s once things go south that they start wondering what happened & looking for someone to blame. Here’s the rule. https://files.acrobat.com/a/preview/b6a784f9-0bb4-4aba-958c-8d6d57920b43

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