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January 2018

What is meant by the “generally known” exception to former client confidentiality?

Model Rule 1.9(c)(1) Duties to Former Clients of the ABA Model Rules of Professional Conduct provides that a lawyer can use information relating to the representation of a former client so long as the information has become “generally known.”

But just what does “generally known” mean in this context?  Last week, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 479 The “Generally Known” Exception to Former-Client Confidentiality in which it attempted to answer that very question.

ABA Model Rule 1.6 Confidentiality of Information  prohibits a lawyer from revealing information relating to the representation of a current client unless the client consents or one of the enumerated exceptions applies.

Rule 1.9(c)(2) similarly prohibits a lawyer from revealing information about a former client except as the Rules would permit or require with respect to a client, thus incorporating the protections of Model Rule 1.6.

1.9(c)(1) prohibits a lawyer from using information about a former client unless the Rules permit or require it or if the information has become “generally known.” However, neither the Rules nor the Comments provide a definition of the term.

The committee noted that state bar opinions and other authorities that have considered the question have had an easier time deciding what is not generally known as opposed to defining what is.

Reviewing the various authorities that have discussed the generally known concept, the committee found helpful this quote from Roy Simon’s New York Rules of Professional Conduct Annotated (2017), which discussed the meaning of generally known:

…[T]he phrase “generally known” means much more than publicly available or accessible. It means that the information has already received widespread publicity. For example, a lawyer working on a merger with a Fortune 500 company could not whisper a word about it during the pre-offer stages, but once the offer is made—for example, once AOL and Time Warner have announced their merger, and the Wall Street Journal has reported it on the front page, and the client has become a former client—then the lawyer may tell the world. After all, most of the world already knows. . ..

[O]nly if an event gained considerable public notoriety should information about it ordinarily be considered “generally known.”

Looking to state bar opinions that have been issued on this topic, the committee referred to New York State Bar Opinion 991 (2013), which stated that “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.”

Illinois State Bar Opinion 05-01 (2006) stated that information is generally known if it is “common knowledge in the community.”

The committee also cited to The Law of Lawyering by Geoffrey C. Hazard Jr., W. William Hodes and Peter R. Jarvis. Their discussion of the scope of the 1.9(c)(1) generally known provision explains:

…It seems likely that both the Kutak Commission and the Ethics 2000 Commission . . .  had in mind situations in which a lawyer has worked with a company in various legal contexts, learned considerable information about its products and practices, and later seeks to use this information in connection with [the] representation of an adverse party in an unrelated lawsuit or transaction of some kind. 

Geoffrey Hazard was the official reporter to the Kutak Commission, which was responsible for drafting the Model Rules of Professional Conduct in the early 1980s.

In conclusion, the committee stated that information is generally known when it has been widely disseminated through established media sources such as newspapers, websites, radio or social media. Information is also considered to be generally known to a particular trade or industry if it is “announced, discussed or identified in what reasonable members of the industry, trade or profession would consider a leading print or online publication or other resource in the particular field.”

However, the committee found that “[i]nformation is not generally known simply because it is available in the public domain or available in a public file.”

Therefore, just because information is publicly available whether it be in a public library or in a court file, or because the information has been discussed in open court does necessarily mean that the information is generally known for the purposes of Rule 1.9(c)(1).

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