Client Confidentiality · 6-12% of the exam
7.3.3May or must? Disclosing and acting, side by side
Every exception in this chapter says may; the rules that say must mostly live elsewhere, and the exam tests the verb more often than the facts. The rules a lawyer is most often asked to act on, with the word each one turns on and whether it beats Rule 1.6. Side by side:
May or must? The disclosure and action rules at a glance
| Rule | Situation | May or must, and the trigger | Does it beat Rule 1.6? | Source |
|---|---|---|---|---|
| 1.6(b)(1) to (7) | Prevent reasonably certain death or substantial bodily harm; prevent a client crime or fraud reasonably certain to cause substantial financial or property injury, or prevent, mitigate or rectify that injury, where the client used the lawyer's services; secure ethics advice; self-defense; comply with other law or a court order; a conflicts check on a firm change | May, to the extent the lawyer "reasonably believes necessary" | It is the exception to Rule 1.6. Staying silent never violates Rule 1.6(b): every paragraph says "may" | Rule 1.6(b) |
| 1.6(b)(6) | Other law or a court order requires disclosure. Comment [15]: unless the client gives informed consent otherwise, the lawyer should first assert for the client all nonfrivolous claims that the order is not authorized or the information is privileged | May, to the extent reasonably believed necessary; after an adverse ruling, the lawyer must consult the client about an appeal (Comment [15]) | Yes, to the extent needed | Rule 1.6(b)(6); Comment [15] |
| 3.3(a)(3), (b) | The lawyer, the client or a witness the lawyer called has offered material evidence the lawyer comes to know is false; or the lawyer knows a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding | Must take reasonable remedial measures, including, if necessary, disclosure to the tribunal; "knows" | Yes, even if compliance requires disclosing Rule 1.6 information, until the conclusion of the proceeding | Rule 3.3(a)(3), (b), (c); Comments [10], [13] |
| 3.3(a)(2) | Legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the client's position, and not disclosed by opposing counsel | Must disclose; "known to the lawyer" | Not a Rule 1.6 question: law, not client information | Rule 3.3(a)(2) |
| 4.1(b) | In the course of representing a client, a statement to a third person where silence would mean assisting the client's crime or fraud | Must disclose a material fact, "unless disclosure is prohibited by Rule 1.6"; "knowingly" | No: Rule 1.6 wins. But once Rule 1.6(b)(2) or (3) permits disclosure, Rule 4.1(b) makes it a must. If Rule 1.6 still forbids it, withdraw; Comment [3]: notice of the withdrawal, and disaffirming an opinion or document, may be necessary | Rule 4.1(b); Comment [3] |
| 1.13(b) | The organization's lawyer knows an officer, employee or other person associated with it is acting, intends to act or refuses to act, in a matter related to the representation, in a way that violates a legal duty to the organization or is a violation of law that reasonably might be imputed to the organization, and is likely to result in substantial injury to it | Must refer the matter to higher authority in the organization, up to its highest authority if warranted, "unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so"; "knows" | Internal only: reporting up stays inside the client | Rule 1.13(b); Comment [4] |
| 1.13(c), (d) | Despite the lawyer's efforts, the highest authority insists on, or fails to address in a timely and appropriate manner, an action or a refusal to act that is clearly a violation of law, and the lawyer reasonably believes it is reasonably certain to result in substantial injury to the organization | May reveal information outside the organization, whether or not Rule 1.6 permits it; "reasonably believes" | Yes, but only to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. Never when the lawyer was retained to investigate or defend the alleged violation (Rule 1.13(d)) | Rule 1.13(c), (d); Comment [6] |
| 1.14(b), (c) | The lawyer reasonably believes the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken, and cannot adequately act in the client's own interest (the text your exam tests; the ABA's February 2026 rewrite calls this "decision-making limitations", see Chapter 4, section 4.1.3) | May take reasonably necessary protective action; "reasonably believes" | Rule 1.14(c): when taking protective action the lawyer is impliedly authorized under Rule 1.6(a) to reveal information, but only to the extent reasonably necessary to protect the client's interests | Rule 1.14(b), (c) |
| 8.3(a), (b) | The lawyer knows another lawyer has committed a violation raising a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer; or knows a judge has committed one raising a substantial question as to the judge's fitness for office | Must inform the appropriate professional authority (for a judge, the appropriate authority); "knows" plus "substantial question" | No: Rule 8.3(c) exempts information protected by Rule 1.6 and information gained in an approved lawyers assistance program | Rule 8.3(a) to (c); Comment [3]: "a measure of judgment" is required in applying the rule, and "substantial" refers to the seriousness of the possible offense, not the quantum of evidence |
| CJC 2.15 | A judge has knowledge that another judge or a lawyer committed a violation raising a substantial question as to honesty, trustworthiness, or fitness; or receives information indicating a substantial likelihood that another judge or a lawyer committed a violation | Must inform the appropriate authority (knowledge); must take "appropriate action" (substantial likelihood) | n/a | CJC Rule 2.15(A) to (D) |
| 1.16(a) vs (b) | Withdrawing | Must withdraw on the four Rule 1.16(a) grounds; may on the seven Rule 1.16(b) grounds | n/a, but Rule 1.16(c): where applicable law requires it, the lawyer must still get the tribunal's permission, and must continue if ordered to | Rule 1.16(a) to (c) |
| 3.8(d), (g), (h) | Prosecutor. (d): evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. (g): new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense. (h): clear and convincing evidence of innocence | Must make timely disclosure of all of it (d), with no materiality test under the ABA Model Rule; must promptly disclose it (g); must seek to remedy a conviction in the prosecutor's jurisdiction (h); "tends to negate"; "knows" | n/a | Rule 3.8(d), (g), (h); ABA Formal Opinion 09-454 |
| 4.4(b) | The lawyer receives a document or electronically stored information relating to the representation and knows or reasonably should know it was sent inadvertently | Must promptly notify the sender, and the Rules require nothing more: whether to return it, or whether privilege is waived, is a question for other law; "knows or reasonably should know" | n/a | Rule 4.4(b); Comments [2], [3] |
| 1.4(a) | A settlement offer or a proffered plea bargain arrives | Must promptly tell the client, unless the client has already said the proposal would be acceptable or unacceptable, or has authorized the lawyer to accept or reject it | n/a | Rule 1.4(a)(1); Comment [2] |
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