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The author is a partner with Miller, Shakman & Beem LLP, Chicago.
Two lawyers walk into a bar. That may sound like the beginning of a joke. In fact, it may be the beginning of an ethical violation. If the two lawyers are not in the same firm, and they casually drink and swap war stories, they almost certainly will violate ABA Model Rule of Professional Conduct 1.6(a), even if what they discuss is neither privileged nor something the client would consider a confidence.
My attention to this rule was focused last year because the Illinois version of Rule 1.6(a) was broadened to conform to the Model Rule. Having examined the Model Rule, I daresay that most lawyers in the many states using Model Rule 1.6(a) do not fully grasp the breadth of the rule and unwittingly violate it regularly.
Imagine that our two hypothetical lawyers are law school classmates who meet occasionally over drinks to catch up. One became a litigator, the other a transactional lawyer. Nevertheless, they remain friends.
The litigator begins. He takes care not to reveal privileged communications or violate any protective order. But he freely names clients and recounts facts about two of his cases that were previously revealed in filed pleadings, in statements made in open court, and in nonconfidential discovery materials. He has not asked for or obtained client consent to talk about this information, and it never occurred to him that he needed to do so.
After feigning interest in the litigator’s stories, the transactional lawyer describes a pair of matters she is handling. (The litigator nods as if he finds transactional practice fascinating.) She takes care not to reveal any privileged communications or information that the companies are keeping secret. She reveals that her client, XYZ Corp., has notified 200 employees that they are being terminated via a reduction in force, and her firm has prepared the severance documents. She also reveals that another client, ABC Corp., had just hired a new chief executive officer, Ned Profitt, and she had negotiated the contract with Profitt’s attorney. She describes several of the contract terms, including Profitt’s compensation package, all of which were revealed in documents filed with the Securities and Exchange Commission (SEC). She has not asked for or obtained client consent to have such discussions, and it never occurred to her that such consent would be needed.
Did either lawyer violate Model Rule 1.6? Most lawyers would say no. Most lawyers would admit that they have had many conversations not unlike the one above. And most would be surprised to learn that a straightforward, literal reading of Rule 1.6 says that both lawyers violated the rule.