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Client Confidentiality · 6-12% of the exam

7.1The Duty — Broad and Lasting (Rule 1.6)

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  • Rule 1.6 — general duty and authorized disclosures

CCCCCC

  • C1Certain death or substantial bodily harm
  • C2Crime or fraud using the lawyer's services (prevent-future and rectify-past prongs)
  • C3Compliance with ethics rules (securing legal ethics advice)
  • C4Controversy with the client (self-defense)
  • C5Court order or other law
  • C6Conflicts of interest (detecting and resolving conflicts on firm transition, added as Rule 1.6(b)(7) in 2012)

Why

A client cannot get useful advice without handing over the damaging parts, and nobody hands the damaging parts to someone who might repeat them. The duty is drawn wide and does not expire, because a client deciding what to say cannot be asked to predict which fact will matter later, or when somebody's interest in repeating it might surface.

Plain English

A lawyer may not reveal information relating to the representation unless:

  1. the client gives informed consent,
  2. disclosure is impliedly authorized to carry out the representation, or
  3. a Rule 1.6(b) exception applies.

That information covers anything connected to the matter from any source. The duty runs to current and former clients and survives the death of client and lawyer alike; prospective clients are reached by Rule 1.18(b). Any adverse disclosure must be no greater than the lawyer reasonably believes necessary, and whenever feasible the lawyer should first try to convince the client to act in a way that removes the need to reveal anything at all. Separately, Rule 1.6(c) requires reasonable efforts to prevent inadvertent or unauthorized disclosure of, or unauthorized access to, representation-related information.

Rule

Rule 1.6 — general duty and authorized disclosures

  • Scope (Rule 1.6(a))

    A lawyer shall not reveal information relating to the representation unless: (i) the client gives informed consent, (ii) disclosure is impliedly authorized to carry out the representation, or (iii) a specific Rule 1.6(b) exception applies.

  • "Information relating to the representation" covers what the client says; what the lawyer learns from witnesses, documents, or any other source; and anything connected to the matter from any origin. The prohibition also reaches disclosures that do not themselves reveal protected information but could reasonably lead a third person to discover it (Comment [4]).

  • Who is covered

    current clients; former clients (the duty survives termination of representation and is enforced through Rule 1.9(c)(2)); prospective clients, who are covered by Rule 1.18(b) rather than by Rule 1.6. The duty survives both the client's death and the lawyer's death.

  • What Rule 1.6 prohibits

    revealing information relating to the representation.

  • Related use prohibition (not Rule 1.6)

    separately, Rules 1.8(b), 1.9(c)(1) and 1.18(b) prohibit using the information to the client's disadvantage without informed consent.

  • Implied authority

    Except to the extent that the client's instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures appropriate to carrying out the representation (for example, admitting a fact that cannot properly be disputed). Lawyers within a firm may share client information in the normal course of practice unless the client has specifically restricted that sharing.

  • Affirmative duty to protect (Rule 1.6(c))

    A lawyer shall make reasonable efforts to prevent inadvertent or unauthorized disclosure of, or unauthorized access to, representation-related information. What counts as reasonable depends on how confidential the material is together with how burdensome or expensive the protections available would be to deploy.

    • Comment [18]: a client may require special security measures beyond what the rule requires.
    • Comment [19]: no special security measures are required if the method of communication affords a reasonable expectation of privacy; special circumstances, however, may warrant special precautions.
    • Comment [19]: a client may give informed consent to a means of communication the rule would otherwise prohibit.
  • Minimum disclosure

    any adverse disclosure must be no greater than the lawyer reasonably believes necessary; whenever feasible, the lawyer should first try to convince the client to act in a way that removes the need to reveal anything at all.

  • Mnemonic — CCCCCC

    the seven Rule 1.6(b) exceptions, grouped into six C's:

    • Certain death or substantial bodily harm
    • Crime or fraud using the lawyer's services (prevent-future and rectify-past prongs)
    • Compliance with ethics rules (securing legal ethics advice)
    • Controversy with the client (self-defense)
    • Court order or other law
    • Conflicts of interest (detecting and resolving conflicts on firm transition, added as Rule 1.6(b)(7) in 2012)
  • A permission outside Rule 1.6(b)

    the seven exceptions grouped in the six C's above are Rule 1.6(b)'s complete list, but they are not the only source of permitted disclosure. Comment [7] points to Rule 1.13(c), which permits the lawyer, where the client is an organization, to reveal information relating to the representation in limited circumstances (Chapters 9 and 19).

Example 1

Ex. 1

Tom assigns associate Kim to an active file without contacting the client. At a mixer that week, he identifies former client Elena by name, noting details are "right there in the published opinion." Kim: no violation; implied authority permits within-firm sharing absent a client restriction. Elena: the opinion is publicly accessible, but publicly accessible isn't the same as generally known, and the matter stays protected either way — Rule 1.9(c)(1)'s generally-known carve-out frees adverse use against a former client, never disclosure (ABA Formal Op. 479). Tom violated Rule 1.9(c)(2). Stack Tom's two disclosures: one stayed inside his firm, the other named a former client at a mixer.

Example 2

Ex. 2

Sara represented Gina in a dispute that settled two years ago. A court docket shows the case was filed and dismissed. Sara assumes the docket makes the matter public record and identifies Gina at a panel. A dismissal entry is accessible; it isn't generally known. The duty continues; Rule 1.6 has no "generally known" exception, and Rule 1.9(c)(1)'s carve-out frees adverse use against a former client, never disclosure. Sara violated Rule 1.9(c)(2). Chase Sara's assumption back to its source — a docket entry, and nothing else.

Trap

Tip

Questions · 2

Q 01ch07-e01

Question 1 of 2 · Rule 1.6(a)

Attorney joined a firm as a partner and took over a long-running commercial arbitration for one of the firm's established clients. The matter was staffed with Associate, who had worked the file for two years and remained assigned to it. To bring the file current, Attorney gave Associate access to the client's entire document set, including candid internal memoranda about the dispute. Attorney did not ask the client for separate permission before doing so. Nothing in the engagement letter or in any later instruction from the client limited who inside the firm could see the file. Associate used the materials only to prepare the arbitration briefing. Is Attorney subject to discipline?

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7.1 The Duty — Broad and Lasting (Rule 1.6) · Chapter 7 · Open Bar Review