March 01, 2015

The ABA’s Puzzling and Counterintuitive Confidentiality Rule

Thomas E. Spahn

Lawyers who began practicing before 1983 became familiar with the confidentiality duty articulated in the 1969 ABA Model Code of Professional Responsibility—which nearly every state adopted. The ABA Model Code prohibited lawyers from revealing clients’ “confidence[s]” or “secret[s].” ABA Model Code DR 4-101(B). The former referred to “information protected by the attorney-client privilege under applicable law.” ABA Model Code DR 4-101(A). That evidentiary doctrine generally covers intimate communications between clients and their lawyers, made in confidence and maintained in confidence. The ABA Model Code defined the word “secret” as “information gained in the professional relationship that either [1] the client has requested to be held inviolate, or [2] the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” Id.

This formulation made great sense. Lawyers instinctively know not to disclose confidential communications with their clients. The evidentiary attorney-client privilege protection prevents third parties from discovering those communications, and this parallel confidentiality duty forbids lawyers from voluntarily disclosing them. Similarly, lawyers recognize that they must honor clients’ requests to keep information confidential, even if a request reflects some idiosyncratic notion. And no lawyer would ever think it permissible to voluntarily disclose client information if the disclosure would harm the client!

In 1983, the ABA dramatically abandoned this commonsense approach. Under ABA Model Rule of Professional Conduct 1.6(a), lawyers may not reveal any “information relating to the representation of a client,” unless the client consents to the disclosure or some other rule requires or allows it.

The 1983 ABA Model Rules formulation represents a remarkable and essentially unworkable expansion oflawyers’ confidentiality duty. This rule on its face prohibits lawyers from disclosing publicly, widely known, favorable information about their clients unless the clients consent. Lawyers theoretically violate this rule if they acknowledge to their spouse that they were in court that day on a case described in a front-page newspaper article that mentions the lawyer’s presence. A 2009 Nevada legal ethics opinion (LEO) admitted that a lawyer would violate the rule by“[p]honing a client when the client is not at home and leaving a message about the representation on the client’s answering machine.” Nevada LEO 41 (6/24/2009).

Not surprisingly, the ABA has had trouble defending this expansive confidentiality duty. In a 2012 ABA publication, one author cited what he said is a “benefit” of the ABA’s broad approach: “If lawyers spend less time talking about their cases and more time talking about subjects like politics, art or sports, Model Rule 1.6 might have the unintended consequence of making lawyers more interesting to their friends and relatives, and maybe even to one another.” Edward W. Feldman, Be Careful What You Reveal: Model Rule of Professional Conduct 1.6, 38 Litig., no.4 Summer/Fall 2012. That is quite a rationale for a rule whose violation could bring professional punishment.

Ironically, the ABA’s 1983 confidentiality formulation also seems oddly underinclusive. The 1969 ABA Model Code prohibited lawyers from disclosing any “information gained in the professional relationship” if the disclosure would harm the client. But the ABA’s 1983 formulation limits the prohibition to “information relating to the representation of a client.” On its face, this more recent wording would not prevent lawyers from disclosing a client’s crude sexual comment about a co-worker or racist epithets about a waiter. Those communications fell within the 1969 ABA Model Code’s phrase “information gained in the professional relationship” but fall outside the 1983 ABA Model Rules’ phrase “information relating to the representation of a client.” Lawyers’ disclosure of such ugly client communications might violate some other ethics rule, but not the core confidentiality rule.

The states’ and even the ABA’s reactions have confirmed just how far the ABA went off track in 1983. While all or nearly all of the states adopted the 1969 ABA Model Code formulation at the time, many states have rejected the 1983 ABA Model Rules approach. New York, the District of Columbia, Georgia, Minnesota, Virginia, and other states have kept the 1969 ABA Model Code confidentiality rule or a variation of it.

And even states that have adopted the 1983 ABA Model Rules terminology recognize that it cannot be enforced as written. In the 2009 Nevada legal ethics opinion mentioned above, the Nevada Bar explained that “the absolute wording of Rule 1.6 is not literally meant to make every disclosure of the most innocuous bit of client information an ethical violation.” Nevada LEO 41 (6/24/2009). The Nevada Bar suggested “that common sense should be a part of Rule 1.6 and the lawyer should not be disciplined for a harmless disclosure.” Id. Other states may not have been as blunt, but their disciplinary records show that lawyers normally will not face professional sanctions for disclosing client information if the disclosure did not harm the client.

Although the ABA has not revisited its core confidentiality rule, a 2012 revision implicitly highlighted the ABA’s recognition that it went too far in 1983. Ironically, the 1983 ABA confidentiality duty contained no exception for lawyers attempting to clear conflicts of interest either on a day-to-day basis or when hiring lawyers possessing protected client information from an earlier employment. Both of those processes almost necessarily require disclosure of some protected client information. The ABA still hasn’t dealt with the former context, but in 2012 the ABA adopted a provision allowing lawyers to disclose protected client information “to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm.” ABA Model Rule 1.6(b)(7).

The rule also contains a condition on such permissible disclosure: “only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.” Id. If that approach sounds familiar, it should. It echoes the 1969 ABA Model Code approach by prohibiting only those disclosures that involve privileged communications or which would harm the client. Thus, the 2012 ABA Model Rules amendment constitutes what might be called the revenge of the common-sense 1969 ABA Model Code confidentiality formulation.

As a practical matter, the ABA’s 1983 overreach normally does not affect lawyers in their real lives. This is because disciplinary authorities simply don’t enforce the confidentiality rule as it is written. But all lawyers should feel a bit embarrassed by our profession’s inability to articulate and agree on an enforceable definition of our confidentiality duty. After all, lawyers’ tremendously strong confidentiality duty sets us apart from many other professions. And lawyers play the primary societal role in drafting language to guide everyone’s conduct—from statutes to judicial decisions to private contracts. But the ABA and most states have been unable to draft a single enforceable sentence defining one of our profession’s core duties.

Thomas E. Spahn

Thomas E. Spahn is a commercial litigation partner in the Tysons Corner, Virginia, office of McGuireWoods LLP. He recently served on the ABA Standing Committee on Ethics and Professional Responsibility.