(This article appeared in Journal 26,4, Winter 2021)
Update on Proposed 2020 FEO 6 (Commenting Publicly on Client Information Contained in Public Records)
Proposed Opinion 2020 FEO 6 (Commenting Publicly on Client Information Contained in Public Records) was published for comment in October 2020. The proposed opinion concluded that a lawyer was prohibited from discussing his former client’s high-profile case on a podcast, even if the lawyer limited his comments to information in the public record, because the former client did not give his consent. The opinion concluded that, pursuant to Rule 1.6, the lawyer needed his former client’s consent to discuss any information relating to the former client’s case. The proposed opinion specifically concluded that the lawyer needed his former client’s consent, even to discuss information in public records, information presented at judicial proceedings, or information contained in the news.
The comments in opposition to the proposed opinion came fast and furious. The watercooler and listserv discussions of the proposed opinion were robust. We received comments that the proposed opinion would be a violation of a lawyer’s first amendment rights. We also received comments that the proposed opinion is impractical and illogical. For example: it would be impractical to prevent lawyers from discussing their prior cases in CLEs and other educational forums, to prevent lawyers from discussing the holding and precedent in an appellate case they were involved in, to prevent lawyers from mentoring other lawyers utilizing stories of past experiences, and to prevent lawyers from sharing documents. We also heard that it would be illogical to allow everyone in a courtroom to a discuss a case, except the lawyer who actually participated in the matter, or to prevent a lawyer from discussing information that is a matter of public record or headline news. Some comments suggested that the proposed opinion did not correctly interpret and apply the rules (although those comments subsequently failed to provide an alternative interpretation of the rules). Other lawyers expressed concern that the current prohibitions are overly broad and impractical and suggested that the rules should be revised to specifically state that information in the public record or information that is generally known should not be deemed protected information.
All comments were provided to the Ethics Committee for review. As a result of the comments, the proposed opinion was sent back to a subcommittee for further study, with a new instruction to consider whether to proceed with the opinion, propose an amendment to the Rules of Professional Conduct as was suggested, or both. Although overwhelmingly negative, ethics staff at the State Bar was pleased with the amount of feedback received on the opinion. This engagement is part of self-regulation, and both staff and the Ethics Committee are incredibly thankful for the amount of comments received.
When the proposed opinion was sent to subcommittee, the subcommittee meetings were attended by not only the subcommittee members, but a sampling of State Bar officers both past and present, law school professors, representatives of Legal Aid, representatives of the North Carolina Advocates for Justice, and other guests. The discussions that took place during these particular subcommittee meetings were some of the most interesting legal discussions of I have ever been a part. In addition to reviewing all submitted comments, the subcommittee members and guests dissected the North Carolina Rules of Professional Conduct pertaining to a lawyer’s duties of confidentiality, and, similarly, analyzed the confidentiality rules of the small minority of states that have exceptions in their rules for information in the public record and/or information that is generally known. The majority of attendees ultimately agreed that the proposed opinion was a correct interpretation of the current rules. However, as to whether or not Rule 1.6 and/or Rule 1.9 should be revised, a more divided opinion emerged. Some attendees expressed their opinion that the duty of confidentiality a lawyer owes to his client is sacrosanct and the duty as set out in the North Carolina Rules of Professional Conduct (as well as the overwhelming majority of other jurisdictions) should not be changed. These attendees pointed out that lawyers are free to talk about a client’s case at public forum if they get the client’s consent or if they use hypotheticals. They also opined that the lawyer is an agent of the client, and the lawyer owes his clients a duty of loyalty such that the lawyer may not discuss the client’s case against the client’s directive. Other attendees argued that, although contrary to what the text of the rules say, the profession has for years (if not decades) interpreted Rule 1.6 and/or Rule 1.9 in a manner that allows lawyers to speak about the public aspects of their former client’s cases. As such, any change to Rule 1.6 and/or Rule 1.9 would not be a change in carrying out this sacrosanct duty of confidentiality; rather, the rule change would merely be to the text of the rule in a way that reflects how the profession has carried out the duty of confidentiality—without harming clients—for decades.
After several meetings, the subcommittee came to an impasse as to whether or not to revise the confidentiality rules. The chair presented the issue to the full Ethics Committee at the October 7, 2021, meeting for discussion. Again, there was a fascinating debate of the advisability/necessity to revise the rules. After an hour of thoughtful discussion, the full committee directed the subcommittee to continue their efforts to explore an amendment to the Rules of Professional Conduct in this regard in order to provide practical and logical guidance to the bar. What these changes may be is unclear. What is clear from the comments the State Bar received and the discussions we participated in, is that there are some misconceptions as to the content and coverage of the current versions of Rule 1.6 and Rule 1.9
This article addresses four of the most common misconceptions—or “myths”—about a lawyer’s duty of confidentiality under Rules 1.6 and 1.9.
Myth: Rule 1. 6 only applies to “confidential information.”
Fact: Rule 1.6 applies to any information acquired during the professional relationship with a client or relating to representation of a client.
Rule 1.6 sets out a lawyer’s duty of confidentiality to his clients. Section (a) provides that a lawyer “shall not reveal information acquired during the professional relationship with a client” unless the client gives informed consent, the disclosure is impliedly authorized, or the disclosure is permitted by paragraph (b). The title of Rule 1.6 is “Confidentiality of Information.” There is a misconception that the title of Rule 1.6 is “Confidential Information.” In actuality, there is no reference to “confidential information” anywhere in Rule 1.6 or the comments to the rule. Rule 1.6 applies to any information acquired during the professional relationship with a client or relating to representation of a client. The rule coverage is broad and applies not only to matters communicated in confidence by the client, but also to all information acquired during the representation, whatever its source.
Myth: Rule 1.6 only applies to current clients.
Fact: There is no distinction between current and former clients in Rule 1.6.
There is a misconception that Rule 1.6 creates a duty of confidentiality to current clients, and Rule 1.9 extends this duty to former clients. The duty of confidentiality set out in Rule 1.6 continues after the termination of the client-lawyer relationship. Additional duties owed to former clients are discussed in Rule 1.9. Rule 1.9 does not supplant Rule 1.6. As stated in comment [1] to Rule 1.9: “After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this Rule.” (Emphasis added). Rule 1.9(c)(2).
Rule 1.9(a) generally provides that a lawyer may not represent a new client who is materially adverse to a former client when the subject of the representation is “substantially related” to the lawyer’s prior representation. A concern underlying Rule 1.9(a) is the possibility of the lawyer revealing or misusing information learned in a prior relationship. The primary purpose of the “substantial relationship” test is to protect the former client’s information to which the lawyer was privy.
Myth: Lawyers may disclose a former client’s information if it is generally known.
Fact: The “generally known” exception applies only to the use of information, not disclosure.
Rule 1.9(c) separately regulates the use and disclosure of client information regardless of whether matters are substantially related. As noted above, Rule 1.6 broadly prohibits lawyers from disclosing former-client information. This restriction is reiterated in Rule 1.9(c)(2). Rule 1.9(c)(2) deals with disclosure of a former client’s information and prohibits a lawyer from revealing information of either a current or a former client. Rule 1.9(c)(2) provides that a lawyer who has formerly represented a client in a matter shall not thereafter “reveal information relating to the representation except as these Rules would permit or require with respect to a client.” The prohibition on revealing information “except as these rules would permit or require” references the general duty of confidentiality found in Rule 1.6. Lawyers have the same duty not to reveal former client information under Rule 1.9(c)(2) as they have with regard to current clients under Rule 1.6(a).
Rule 1.9(c)(2) confirms that the duty to keep your client’s information confidential per Rule 1.6 extends to former clients. Notably, the rule is an outright prohibition on the lawyer “reveal[ing] information relating to the representation” of a former client. There are no exceptions, and particularly no exception such as that included in (c)(1) regarding a lawyer’s “use” of the former client’s information.
Rule 1.9(c)(1) permits more liberal use of former-client information. Rule 1.9(c)(1) permits a lawyer to use client information if it does no harm to a former client or if the information has become generally known. The “generally known” exception applies only to the use of information, not disclosure.
The carve out in Rule 1.9(c)(1) is not a broad grant of permission for lawyers to use a former client’s information for whatever purpose the lawyer desires so long as the information is generally known.
The terms “reveal” or disclose on the one hand and “use” on the other describe different activities or types of conduct, even though they may occur at the same time. In discussing the use of information related to a current representation (Rule 1.8(b)), comment [5] to Rule 1.8 provides:
Use of information relating to the representation to the disadvantage of the client violates the lawyer's duty of loyalty. Paragraph (b) applies when the information is used to benefit either the lawyer or a third person, such as another client or business associate of the lawyer. For example, if a lawyer learns that a client intends to purchase and develop several parcels of land, the lawyer may not use that information to purchase one of the parcels in competition with the client or to recommend that another client make such a purchase. The Rule does not prohibit uses that do not disadvantage the client. For example, a lawyer who learns a government agency's interpretation of trade legislation during the representation of one client may properly use that information to benefit other clients. Paragraph (b) prohibits disadvantageous use of client information unless the client gives informed consent, except as permitted or required by the Rules of Professional Conduct.
In each of the examples above, the lawyer is using the current client’s information without actually revealing the information.
Myth: Information that is in the public record is generally known.
Fact: Information is accessible through the public record does not make it generally known.
Confusion exists as to when information is “generally known.” Some lawyers believe, incorrectly, that information is “generally known” when it is a matter of public record. Comment [8] to Rule 1.9 explains the exception for information that is “generally known” as follows:
Paragraph (c) provides that information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client. Whether information is “generally known” depends in part upon how the information was obtained and in part upon the former client’s reasonable expectations. The mere fact that information is accessible through the public record or has become known to some other persons does not necessarily deprive the information of its confidential nature. If the information is known or readily available to a relevant sector of the public, such as the parties involved in the matter, then the information is probably considered “generally known.”
The mere fact that information is in the public record does not necessarily deprive the information of the protections provided by Rule 1.6 and Rule 1.9.
In summary, the Rules of Professional Conduct provide that a lawyer may never reveal any information acquired during the professional relationship with a client or relating to representation of a client, unless the client consents or an exception set out in Rule 1.6(b) applies. This prohibition remains in place even if the client becomes a former client and even if the client’s information becomes “generally known.” And this prohibition is the basis for the conclusion reached in Proposed Opinion 2020 FEO 6. The duty of confidentiality set out in Rule 1.6 is incredibly broad, and its broad scope compelled the ethics committee to answer the question posed about a lawyer participating in a CLE over his client’s objection in a way that was perhaps dissatisfying and impractical but nonetheless accurate.
What Now?
The subcommittee continues its work, with the hope that a proposed resolution will be before the committee in January. Be on the lookout for an update at that time, for which comments will again be welcome (even if they say we got it wrong).