“You will have many opportunities
to keep your mouth shut.
You should take advantage
of everyone of them.”
I’ve blogged often on client confidences. Today’s title is the kinder & gentler version of October’s Hey Lawyers! STFU!!!
Last week, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 479: The “Generally Known Exception to Former-Client Confidentiality.” The ABA Journal’s story on the opinion is here.
Before I share (precious few) thoughts from the new advisory opinion, here’s a quick refresher:
- Rule 1.6 prohibits a lawyer from disclosing information relating to the representation of a client;
- Rule 1.9(c) extends the prohibition to “former clients;” and,
- Rule 1.9(c)(1) states that a lawyer “shall not . . . use information relating to the representation to the disadvantage of a former client except as these rules would permit, or when the information has become generally known.” (emphasis added).
As I mentioned in Hey Lawyers! STFU!!!:
- The rules do not permit a lawyer to use information to the disadvantage of a former client merely because the information is “public record.”
- Information that is “public record” is not necessarily “generally known.”
So, what is “generally known?” That’s where the ABA Opinion comes in.
First, however, let’s pause for quick public service announcement:
- if you’re looking for guidance on when it’s ok to use a former client’s information to the former’s client disadvantage, well, think about that for a moment.
Now, back to our regularly scheduled blog.
The formal opinion analyzes the issues far better than I could. (plus, I’m late for a lunch meeting) So, I’ll leave you with its conclusion.
- “A lawyer may use information that is generally known to a former client’s disadvantage without the former client’s informed consent. Information is generally known within the meaning of Model Rule 1.9(c)(1) if it is widely recognized by members of the public in the relevant geographic area or it is widely recognized in the former client’s industry, profession, or trade. For information to be generally known it must previously have been revealed by some source other than the lawyer or the lawyer’s agents. Information that is publicly available is not necessarily generally known. “
As always, let’s be careful out there.