Client Confidentiality · 6-12% of the exam
7.2.3Remaining permissive exceptions — self-defense, court order, conflicts, ethics advice (Rule 1.6(b)(4)–(b)(7))
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- Rule 1.6(b)(4), (b)(5), (b)(6), (b)(7) — four additional permissive exceptions
Four additional permissive exceptions: self-defense in client controversies, court-order compliance, conflicts checks on firm transitions, and ethics guidance.
Why
A duty this wide would otherwise leave the lawyer with no answer in situations that have nothing to do with protecting the client: a client suing the lawyer, a judge ordering production, a lawyer checking for conflicts before changing firms, a lawyer trying to learn what the ethics rules require of her. These exceptions supply the answer without dissolving the duty.
Plain English
A lawyer may reveal information:
- to establish a claim or defense in a controversy with the client,
- to defend against a criminal charge or civil claim arising from conduct the client was involved in, or
- to respond to allegations in any proceeding concerning the lawyer's representation of the client.
That right to respond arises once an assertion of the lawyer's complicity has been made, so the lawyer need not wait for a suit to be filed; but public criticism, such as a negative online review, is not in itself a controversy between the lawyer and the client. A lawyer may also reveal information:
- to comply with other law or a court order, after asserting available non-frivolous objections;
- to detect and resolve conflicts on a firm change, merger, or purchase — but only where substantive discussions about the new relationship have already begun and the disclosure would not compromise privilege or prejudice the client; and
- to secure legal ethics advice about the lawyer's own compliance.
Rule
Rule 1.6(b)(4), (b)(5), (b)(6), (b)(7) — four additional permissive exceptions
- Self-defense (Rule 1.6(b)(5))
A lawyer may reveal information
- to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client;
- to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or
- to respond to allegations in any proceeding concerning the lawyer's representation of the client.
The right to respond arises when an assertion of such complicity has been made (Comment [10]); the lawyer need not await the commencement of an action or proceeding, and may respond directly to the third person who made the assertion.
- Comment [10]: public criticism, such as a negative online review of the lawyer or the lawyer's services, is not in itself a "controversy between that lawyer and the client" that permits disclosure under (b)(5).
- Comment [11]: a lawyer entitled to a fee is permitted by (b)(5) to prove the services rendered in an action to collect it.
- Court order / law compliance (Rule 1.6(b)(6))
A lawyer may reveal information to comply with other law or a court order. Before turning anything over, the lawyer should, absent the client's informed consent to do otherwise, assert every non-frivolous objection available (Comment [15]) — challenging the tribunal's authority to compel, or asserting that privilege shields what is being sought. After an adverse ruling, the lawyer must consult the client about appeal. If the client declines to appeal, the lawyer may comply.
- Conflicts check on transition (Rule 1.6(b)(7))
A lawyer may reveal limited information to detect and resolve conflicts of interest when changing firms, when two firms merge, or when a practice is purchased. Four conditions apply:
- Substantive discussions about the new relationship must already have begun before any disclosure.
- Comment [13]: disclosure is limited to what is necessary to detect conflicts: typically the identity of persons and entities involved, a brief summary of general issues, and whether each matter is open or closed.
- The disclosure must not compromise privilege or prejudice the client.
- Any material shared may be deployed solely to the degree required for the conflicts analysis, not for any other firm purpose.
- Not permitted under this exception: an unannounced corporate takeover; a client consulting about divorce before the spouse knows; a client under a criminal investigation not yet made public.
- Ethics advice (Rule 1.6(b)(4))
A lawyer may reveal information to secure legal ethics advice about the lawyer's own compliance with the rules. The lawyer should use hypotheticals to minimize disclosure and should not reveal the client's identity beyond what is necessary.
- Educational use (not a formal Rule 1.6(b) exception)
A lawyer may draw on client matters when teaching, lecturing, or presenting without breaching confidentiality, provided the client stays unnamed and cannot be pieced together from the surrounding details.
Key limit on the conflicts-check exception: no disclosure until substantive job discussions begin, and even then only minimum identifying information; sensitive undisclosed matters remain off-limits.
Questions · 2
Q 01ch07-e06
Question 1 of 2 · Rule 1.6(b)(5)
Attorney handled a boundary dispute for Client and closed the file after a settlement Client thought too small. Client then posted a one-star review on a lawyer-rating site, writing that Attorney had sold the case out and had ignored an appraisal. No claim, complaint, or bar grievance has been filed anywhere, and Client has accused Attorney of nothing outside the review. Attorney drafted a public reply on the same site setting out the appraisal figures, the settlement authority Client had given, and Client's own instruction to end the matter quickly. The reply has not yet been posted. Would it be proper for Attorney to post the reply?
Keys 1 to 4 choose.