Client Confidentiality · 6-12% of the exam
6.1.1Privilege versus the duty of confidentiality (Rule 1.6)
The attorney-client privilege stops a court from compelling disclosure of confidential attorney-client communications. Rule 1.6 bars the lawyer from voluntarily disclosing information relating to the representation, wherever it came from; a court order overrides Rule 1.6 protection but cannot overcome privilege. Every Rule 1.6(b) exception is "may," not "must."
Why
Two different dangers need two different answers. One is a court forcing the lawyer to testify about what passed between her and her client. The other is the lawyer talking of her own accord — at a dinner, in a pitch, to a reporter. A protection built against the first does not touch the second, so the profession keeps both.
Plain English
Privilege is an evidentiary rule: it covers confidential attorney-client communications made for the purpose of legal assistance and blocks compelled disclosure. Rule 1.6 is an ethics rule: it covers any information relating to the representation whatever its source, and bars voluntary revealing. Privilege applies to current, former, and prospective clients; the Rule 1.6 duty reaches current clients, former clients through Rule 1.9(c)(2), and prospective clients through Rule 1.18(b).
Two shields, different scopes:
| Attorney-Client Privilege | Rule 1.6 Duty of Confidentiality | |
|---|---|---|
| Source | Evidentiary / common law | ABA Model Rule 1.6 |
| Covers | Confidential communications between attorney and client made for the purpose of legal assistance | Any information relating to the representation, regardless of how the lawyer learned it |
| Prevents | Compelled disclosure (subpoena, court order) | Voluntary revealing of the information |
| Applies to | Current, former, and prospective clients | Current clients; former clients through Rule 1.9(c)(2); prospective clients through Rule 1.18(b) |
| Duration | Perpetual; survives the client's death | Perpetual; survives the client's and lawyer's death |
The exam will describe a lawyer who learned information from a third-party witness and ask whether a court may compel its disclosure. That information isn't privileged (no attorney-client communication occurred), but Rule 1.6 still bars voluntary disclosure. A valid court order reaches it; only privilege blocks compelled testimony outright.
Quick review — Publicly available ≠ generally known (ABA Formal Op. 479) (taught fully in Chapter 7)
Two points, and the trap that ignores both:
- The Rule 1.6 duty covers information relating to the representation whatever its source, including information technically on the public record.
- "Generally known" is a Rule 1.9(c)(1) term, and it frees only adverse use against a former client. "Publicly available" (a filed judgment, docket entry, or published opinion) does not make the matter generally known, and Rule 1.6 carries no generally-known exception either way.
Trap
Tip
Questions · 3
Q 01ch06-e01
Question 1 of 3 · Rule 1.6
Attorney was retained to advise Corporation about its compliance with federal safety standards. The chief executive of Corporation met Attorney alone in a closed conference room and described, for the purpose of getting legal advice, a manufacturing defect in a product line that had already injured several purchasers. No one else attended the meeting, and neither the chief executive nor Attorney repeated a word of it afterward. A grand jury investigating the injuries later served Attorney with a subpoena demanding testimony about everything said at that meeting. Attorney declined to answer, and the prosecutor moved to compel. May the court compel Attorney to testify about that conversation?
Keys 1 to 4 choose.