Ethics Tip

Is Information that is Publicly Available and Related to the Subject Matter of the Representation Protected as Confidential Information under Model Rule 1.6?
March 2017

by

You have a practice concentrating in family law.

Recently, you represented a client in a bitterly contested divorce.

You spent many weeks preparing for the case which was made all the more difficult because your client, while being deposed was caught misrepresenting the value of certain assets accumulated during the marriage that would have been considered to be marital property.

The client was unhappy with the outcome of the matter, and in particular was upset about the size of the settlement amount he was ordered to pay to his spouse.

The client went public with his displeasure, posting a negative review of the lawyer’s services on a social media site complaining about the representation and “wishing that he had retained a competent attorney”.

You are very upset when you read the review and are tempted to respond to it with specific references to the misrepresentations the client made in the deposition.

Assuming that the deposition is publicly available in the court file, would it be appropriate for you to disclose this information?         

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ABA Model Rule 1.6 Confidentiality of Information of the ABA Model Rules of Professional Conduct has a very expansive view of confidential client information, stating that:

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized or the disclosure is permitted by paragraph (b).

Subpart (b) of the Rule lists a number of exceptions, none of which would permit a lawyer to disclose information about his client that is publicly available under the facts presented in the opening hypothetical.[1]

There have been several state bar ethics opinions that have been issued on this topic over the past few years.  One of the most recent is Texas State Bar Opinion 662  (2016) which stated that in response to a negative on-line review, a lawyer may not reveal information relating to the representation that has become “generally known”.  See also the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline Opinion Number 2012-3 (2012), which addressed the issue of whether a lawyer could disclose information to an alternative litigation financing company concerning his client’s past police or accident reports without his client’s consent. The Commissioners stated:

…The duty of confidentiality found in Prof.Cond.R. 1.6 encompasses all information related to the representation of a client. Accordingly, a lawyer may not provide any information or documentation concerning a representation to an ALF provider without the client’s informed consent. Because Prof.Cond.R. 1.6 fails to contain an exception for information that is publicly available, the lawyer must obtain informed consent even for records that may be maintained in a repository of public records (such as police or accident reports).

See also Pennsylvania Bar Association Opinion 2014-200 (2014), citing to Iowa Supreme Court Att'y Discipline Bd. v. Marzen, 779 N.W.2d 757, 765-67 (Iowa 2010) (concluding that “the rule of confidentiality is breached when an lawyer discloses information learned through the lawyer-client relationship even if that information is otherwise publicly available”).

There is also case law on point.  See, e.g. In Re Anonymous 932 N.E. 2d 671 (2010) (Lawyer violated Rule 1.6 when he disclosed information relating to client’s divorce even though the information was available in police reports or other public sources).

Publicly available vs. generally known

Even though Rule 1.6 does not provide an exception, some authorities suggest that under some circumstances, certain types information that is publicly available need not necessarily be considered to be confidential.  See for example the Restatement (Third) section 59 (2000) Definition of “Confidential Client Information of the Law Governing Lawyers that states that information that is “generally known” is not considered to be confidential client information.  Paragraph (d) of section 59 provides a definition of “generally known” information:

d. … Generally known information. Confidential client information does not include information that is generally known….
Whether information is generally known depends on all circumstances relevant in obtaining the information. Information contained in books or records in public libraries, public-record depositaries such as government offices, or in publicly accessible electronic-data storage is generally known if the particular information is obtainable through publicly available indexes and similar methods of access. Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense. Special knowledge includes information about the whereabouts or identity of a person or other source from which the information can be acquired, if those facts are not themselves generally known.

See also Hazard, Hodes and Jarvis, The Law of Lawyering 4th edition 2015 supplement in which the authors discuss the above referenced Restatement section:

…Keeping in mind the admonitions of paragraph [14] of the Scope section that “the rules of Professional Conduct are rules of reason” it seems clear that the same kind of commonsense limitation should be read into the over-inclusive definition of confidentiality set out in Model Rule 1.6(a).

Some states have adopted versions of Rule 1.6 that specifically address information that is “generally known” See Comment [4A] to Rule 1.6 of the New York Rules of Professional Conduct

“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.

The New York State Bar Ethics Committee analyzed this provision of the New York Rule 1.6 in New York State Bar Opinion 1057 (2015):

The definition of “confidential information” does not include “information that is generally known in the local community or in the ... profession to which the information relates.” Comment [4A] to Rule 1.6 states: “Information is not ‘generally known’ simply because it is in the public domain or available in a public file. … In N.Y. State 991 (2013) we explained that sentence: “In our view, information is generally known only if it is known to a sizeable percentage of people in ‘the local community or in the trade, field or profession to which the information relates.’ ”

Other state bar rules have similar provisions.  See, e.g. paragraph 3[A] of the Comment to Rule 1.6 of the Massachusetts Rules of Professional Conduct

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Hunter v. Virginia State Bar 744 S.E. 2d 611 (2013) is a case of note that addressed some of the issues in this area.  In this case, the Virginia Supreme Court held that the Virginia bar’s finding that Rule 1.6 prevented a lawyer from posting publicly available information about his clients in his blog violated the First Amendment.  For more on this story, See Bog People, in the November, 2013 ETHICSearch Tip of the Month.

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Under ABA Model Rule of Professional Conduct 1.6(a) information related to the representation of a client that is in the public record is confidential client information that cannot be revealed without the client’s consent.  Therefore, the miffed lawyer in the hypothetical set out above may not reveal information relating to the representation without his client’s consent.[2]  The fact that this information is contained in a publicly-available court file is not dispositive.

As always, to the extent that questions arise, consult the applicable jurisdiction’s rules of professional conduct, case law and ethics opinions.  Your state bar may also be able to help.

For further annotations and resources on this topic, See the annotations to Rule 1.6 as they appear in the eighth edition of the ABA Annotated Model Rules of Professional Conduct (2015) as well as the analysis that appears under the heading, Publicly Available or Previously Disclosed Information at page 55:311 of the ABA/BNA Lawyers’ Manual on Professional Conduct.

You can also call ABA ETHICSearch at 312 988-5315 or e-mail us at ethicsearch@americanbar.org.


[1] (Note: ethical issues surrounding the disclosure of client confidential information in response to negative on-line lawyer reviews has been the subject of several state bar ethics opinions.   For a discussion of them and the issues involved, See the May, 2016 Eye on Ethics column, Disclosure of confidences in controversies with clients: Less is more)

[2] Rebutting a client’s less-than-flattering on-line assessment would not fall under the Rule 1.6(a) exception of “impliedly authorized to carry out the representation” for revealing this information.

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