Rule 1.6 Confidentiality of Information

COMMENT

[1] Lawyers must be circumspect with respect to information learned in the course of representing their clients. This Rule governs the disclosure by a lawyer of confidences or secrets of a client during the lawyer’s representation of the client. See Rule 1.18 for the lawyer’s duties with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer’s duty not to reveal information relating to the lawyer’s prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the disadvantage of clients and former clients.

[2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation which is protected by the attorney- client privilege or may be detrimental to the client’s interests. While the Model Rule (2002) provides a broad formulation with respect to confidential information, the Task Force chose to retain the more limited scope of protection to matters protected by the attorney-client privilege and information gained in the relationship the disclosure of which may be detrimental to the client’s interests. This was the approach taken under M. Bar R. 3.6, the Model Code of Professional Responsibility, the RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS, as well as other states which have otherwise adopted the Model Rules of Professional Responsibility. See Rule 1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld. The Task Force determined that the use of the term, “confidences and secrets,” as used in the Model Code, the RESTATEMENT and M. Bar R. 3.6 is preferable to the broader formulation of “information relating to the representation of the client.” The language of the definition of “secrets,” derived from Section 60 of the RESTATEMENT, offers lawyers the benefit of the law expressed and cited therein.

[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source, which may be detrimental to the client’s interests. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope.

[4] Paragraph (a) prohibits a lawyer from revealing confidences and secrets of a client. The prohibition on disclosure also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

Authorized Disclosure [5] The lawyer may disclose information relating to the representation which he or she reasonably believes is necessary to carry out the representation. This language is derived from Section 61 of the RESTATEMENT OF THE LAW GOVERNING LAWYERS. In some situations, for example, a lawyer may believe it is necessary to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

Disclosure Adverse to Client [6] Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of confidences and secrets of clients’ information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain substantial bodily harm or death. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims. The requirement in M. Bar R. 3.6(h)(4)(l) requiring that an act that is likely to result in death or bodily harm be a criminal act has been eliminated. Rule 1.6(b)(1) also requires that the potential harm be substantial. The elimination of the requirement of criminality and the inclusion of the requirement of substantiality is consistent with the approach taken in the 2002 Model Rules and the RESTATEMENT.

[7] Paragraph (b)(2) is a limited exception to the rule of confidentiality that permits the lawyer to reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or fraud, as defined in Rule 1.0(d), that is reasonably certain to result in substantial injury to the financial or property interests of another and in furtherance of which the client has used or is using the lawyer’s services. Such a serious abuse of the client-lawyer relationship by the client forfeits the protection of this Rule. The client can, of course, prevent such disclosure by refraining from the wrongful conduct. Although paragraph (b)(2) does not require the lawyer to reveal the client’s misconduct, the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. See Rule 1.2(d). See also Rule 1.16 with respect to the lawyer’s obligation or right to withdraw from the representation of the client in such circumstances, and Rule 1.13(c), which permits the lawyer, where the client is an organization, to reveal information relating to the representation in limited circumstances. As noted in Comment [6], this provision is a departure from recently amended M. Bar R. 3.6(h)(4), which draws the permissive disclosure line at whether the client’s conduct is “criminal,” and not at the nature and extent of the harm. At the time the lawyer makes the decision as to whether he or she can or will disclose the client’s act, it may be difficult to determine whether the client’s “fraud” rises to the level of a crime. Accordingly, the Task Force deleted the categorical limitation to crime and follows the Model Rule 1.6 (2002) inclusion of fraud, so long as the harm could be substantial.

[8] Paragraph (b)(3) addresses the situation in which the lawyer does not learn of the client’s crime or fraud until after it has been consummated. Although the client no longer has the option of preventing disclosure by refraining from the wrongful conduct, there will be situations in which the loss suffered by the affected person can be prevented, rectified or mitigated. In such situations, the lawyer may disclose information relating to the representation to the extent necessary to enable the affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses. Paragraph (b)(3) does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense.

[9] A lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer’s professional responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance of a lawyer’s compliance with the Rules of Professional Conduct.

[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client’s conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer’s right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.

[11] Lawyers may not use the threat of disclosure of confidences or secrets out of spite or in order to obtain leverage against a client in a fee dispute. A lawyer reasonably entitled to a fee is permitted by paragraph

(b) (5), however, to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.

[12] Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of confidences or secrets appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If the other law supersedes this Rule and requires disclosure, paragraph (b) [(7)]1 permits the lawyer to make such disclosures as are necessary to comply with the law. In situations in which confidences and secrets may be revealed in connection with a controversy in which the client is not a party, prior to disclosure, paragraph (c) requires the

1 Paragraph (b)(6) was renumbered to paragraph (7), effective September 1, 2015.

lawyer to make a good faith effort to provide notice to the client that a confidence or secret under paragraph (b)(5) or [(7)] may be revealed.

[13] A lawyer may be ordered to reveal confidences or secrets by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all non-frivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court’s order.

[14] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Paragraph (c) requires that with respect to disclosures under paragraphs (b)(1), (2) and (3), the lawyer must make a good faith effort, if feasible, to counsel the client to prevent the harm and obviate the need for disclosure. This requirement is consistent with Sections 66 and 67 of the RESTATEMENT. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.

[15] Paragraph (b) permits but does not require the disclosure confidences or secrets to accomplish the purposes specified in paragraphs

(b) (1) through (b)[(7)]. In exercising the discretion conferred by this Rule, the lawyer may consider such factors as the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction and factors that may extenuate the conduct in question. A lawyer’s decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be required, however, by other Rules. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule. See Rule 3.3(c).

Acting Competently to Preserve Confidentiality [16] A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. Consistent with Section 66 of the RESTATEMENT, a lawyer who takes action or decides not to take action allowed under this Rule is not, solely by reason of such action or inaction, subject to professional discipline, liable for damages to the lawyer’s client or any third persons, or barred from recovery against a client or third persons. The legal effect of the lawyer’s choice, however, is beyond the scope of the Model Rules of Professional Conduct.

[17] When transmitting a communication that includes confidences or secrets of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.

Former Client [18] The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.

REPORTER’S NOTES:

Model Rule 1.6 (2002) corresponds to M. Bar R. 3.6(h). Notwithstanding some significant substantive distinctions, the Task Force recommended the adoption of the structure set forth in the 2002 Model Rules with respect to the confidentiality issues. For example, the issue of confidentiality of information with respect to current clients, former clients and prospective clients is found within the confines of M. Bar R. 3.6(h). In contrast, the 2002 Model Rules address confidentiality with respect to former clients in Rule 1.9(c), and confidentiality with respect to prospective clients in Rule 1.18(b). Moreover, 2002 Model Rule 1.6 addresses permissive disclosure of confidential information but leaves mandatory disclosure of confidential information to Rule 3.3, Candor to the Tribunal and Rule 4.1, Truthfulness in Statements to Others. The Model Rules handle the duty to prevent others from disclosing confidential information as part of Rules 5.1, Responsibility of Partners, and 5.3, Responsibilities Regarding Non-lawyer Assistants.

The Task Force discussed the issue of how much and what type of information should be protected by the confidentiality rule. The Task Force considered whether the Maine Rules of Professional Conduct should protect “all information relating to the representation of the client” (the approach taken by the 2002 Model Rules), or “confidences or secrets of a client” (the approach taken by Maine before the July 1, 2005 amendment to M. Bar R. 3.6(h)).

“Information relating to the representation of a client” is a very broad formulation. It protects not only information communicated by the client, but any information related to the representation received from other sources; and even information that is not in itself protected, if it leads to the discovery of protected information. Positive, public information about the client learned in the course of the client representation would also be protected. The Model Rules Reporter acknowledged the potential breadth of this formulation of the scope of protected information, if read literally.

In contrast, under the “confidences or secrets” approach, information relating to the representation obtained from sources other than the client is protected only if disclosure of the information is detrimental to the client’s interests, or the client affirmatively requests the information be protected. “Secret” in former M. Bar R. 3.6(h) (the rule in effect prior to July 1, 2005)

(and in the pre-2002 Model Code and RESTATEMENT § 60) refers to information other than information protected by the attorney-client privilege, that is “gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or detrimental to a client.” Presumably, information gained in the course of representation of the client could be from any source. Thus, former M. Bar R. 3.6(h) definition of “secret” permits disclosure of information relating to the representation without the client’s consent, so long as disclosure would not disadvantage the client. This is not permitted under the Model Code or under the Model Rules. Information that is protected by the attorney-client privilege is considered a “confidence.”

The Task Force further discussed the distinction between “use of” and “revealing” recognizing that one can use information without revealing it. Consider the following example. You know that your client is about to develop a tract of land. As a result, neighboring tracts will become more valuable. You buy a neighboring tract. The purchase does not reveal what you know as a result of your client representation. If the use of the information (purchasing the land) does not disadvantage your client, you may do so under Model Rule 1.8(b). “Use of information” is a concept more closely aligned with a conflict-of-interest, than with the revelation of confidential client information. Thus, in the 2002 Rules, “use” is included in Rule 1.8 and 1.9, rather than Rule 1.6.

The vast majority of jurisdictions have adopted the term “reveal” in Rule 1.6 and retained “use” in Rule 1.8(b) and Rule 1.9(c)(1). The Task Force ultimately decided to follow the approach of the 2002 Model Rules, and have Rule 1.6 simply govern information that may be “revealed” and have information that is “used” be addressed in Rule 1.8(b) and Rule 1.9(c)(1).

The Task Force discussed whether disclosures authorized under Paragraph (a) include information that is expressly authorized (informed consent) as well as impliedly authorized. The Task Force thought that the term, “impliedly authorized” was unclear. The Task Force thought the better choice was to allow disclosure when “the lawyer reasonably believes that disclosure is authorized in order to carry out the representation.” The Task Force also discussed whether express authorization must be made in writing and recommended that express authorization of disclosures was not required to be in writing.

The Task Force thought it was important, consistent with the approach taken in the 2002 Model Rules, that the disclosures authorized by paragraph

(b) (1)-[(7)] be permissive rather than mandatory. Maine Rules of Professional Conduct 3.3, however, makes disclosure mandatory when the fraud is upon a tribunal. See also Maine Rules of Professional Conduct Rule 4.1 requiring lawyers to “disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.” With respect to the specific exceptions set forth in paragraphs (b)(1)-[(7)], the Task Force recommended the adoption of the 2002 Model Rule format. In some instances the Task Force recommended the Maine Rules of Professional Conduct 1.6 follow the substance of Model Rule 1.6 (2002); in other instances, the Task Force recommended substantive changes.

With respect to the bodily harm exception found in paragraph (b)(1), the Task Force recommended the exception recognized in M. Bar R. 3.6(h) for client crimes that are “likely to result in death or bodily harm to another person” and “to avoid the furthering of a criminal act,” be replaced with an exception for disclosures to “prevent reasonably certain substantial bodily harm or death.” This language negates the requirement of client criminality. This change sets forth an objective test and is in accord with Model Rule 1.6(b)(1) (2002) as well as Section 66 of the RESTATEMENT. This language goes beyond an exception for imminent harm and makes clear in the existence of a present and substantial threat that a person will suffer an injury or death at a later date is also addressed. Information a client is about to discharge a toxic substance is an example of information that may be revealed to prevent reasonably certain substantial bodily harm or death to third parties. This formulation is a departure from the recent revision to M. Bar R. 3.6(h).

The Task Force, mindful of potential magnitude of the harm to the financial interests or property of third parties as a result of criminal or fraudulent acts of client, recommended the adoption of Model Rule 1.6(b)(2) and (3) (2002). It is a serious abuse of the lawyer-client relationship when a lawyer’s services are used in furtherance of such a crime or fraud. Similar to paragraph (b)(1), there is no requirement of criminality. The Task Force thought a lawyer ought to be able to disclose information relating to a ten million dollar fraud on shareholders, whether or not the fraud rises to the level of a criminal act. Moreover, at the time the lawyer is making the decision as to whether he or she should disclose, it may not be clear whether a client’s “fraud” is criminal, or whether the client behavior can be ultimately proven to be criminal. Paragraph (b)(3) allows for disclosure of confidences or secrets where a client can no longer prevent the disclosure by abstaining from the crime or fraud. The focus of this paragraph is on mitigation and recoupment of losses.

Paragraph (b)(4) allows disclosure when a lawyer is seeking legal advice about the lawyer’s professional obligations The ABA Reporter’s Explanation of this provision is as follows: “In most instances, disclosing information to secure such advice is impliedly authorized. Nevertheless, in order to clarify that such disclosures are proper even when not impliedly authorized, the Commission recommends that such disclosures be explicitly permitted under this Rule. It is of overriding importance, both to lawyers and to society at large, that lawyers be permitted to secure advice regarding their legal obligations.”

With respect to paragraph (b)(5), the Task Force added to the Rule a requirement of reasonable notice to the client before making a disclosure in “self defense.” The notice requirement does not apply to a disclosure in a dispute between the attorney and the client. This requirement of notice strikes a balance between the interest of the lawyer and his or her client. The Task Force discussed whether disclosure ought to be permitted to allow the lawyer to establish an affirmative claim against the client (the approach taken in Model Rule 1.6(b)(5) (2002)) or only to allow the lawyer to establish a defense to a charge of wrongful conduct (the approach taken under M. Bar R. 3.6(h)(3) and Section 63 of the RESTATEMENT). The Task Force recommended the Model Rule approach on this issue, with no requirement of reasonable notice to the client, and subject to the principles set forth in Comment [11].

Paragraph (b)[(7)] allows the disclosure of confidences or secrets in order to comply with other law or a court order. While there is general consensus that a lawyer may disclose to comply with other law or a court order, Section 63 of the RESTATEMENT imposes the additional condition that the disclosure occur only “after the lawyer takes reasonably appropriate steps to assert that the information is privileged or otherwise protected against disclosure.” The disclosure is permissive to allow lawyers to take the risk of contempt or other legal penalties on behalf of a client and not also be the subject of professional discipline.

The Task Force recommended the inclusion of the first sentence of paragraph (c) to make clear that lawyers should give clients “one last chance” to reconsider their contemplated fraudulent or criminal plans. While the 2002 Rules do not articulate a lawyer’s duty to remonstrate with his or her client, M. Bar R. 3.6(h) expressly requires such a conversation with respect to past fraud. Sections 66 and 67 of the RESTATEMENT include the requirement that a lawyer make a “good faith effort to persuade the client not to act,” before disclosing client information.

With respect to the second sentence in paragraph (c), the Task Force thought it is both good policy and practice for lawyers to make a good faith effort to provide notice to a client that their secrets may be revealed in the circumstances outlined in paragraphs (b)(5) and (b)[(7)].

The Task Force recommended that Maine Rules of Professional Conduct Rule 1.6 not include the explicit requirement set forth in M. Bar R. 3.6(h)(2) (addressing a lawyer’s responsibility with respect to lawyers and non- lawyer’s employed by the lawyer) and adopt the Model Rules (2002) approach of relying on Rules 5.1 and 5.3

The Task Force discussed the discretionary nature of the lawyer’s choice to disclose. Consistent with Sections 66 and 67 of the RESTATEMENT, the Task Force thought it was important to note that the lawyer’s choice to act or not act does not subject the attorney to liability. The Task Force also thought it was also important to make clear that the legal effect of the lawyer’s choice to act or not act is beyond the scope of the Maine Rules of Professional Conduct.

Advisory Note – August 2015

The addition of subsection 1.6(b)(6) was recommended in conjunction with the Advisory Committee on Professional Conduct’s recommended abrogation of Rule 1.17 and adoption of Rule 1.17A, Sale of Law Practice. Subsection (b)(6) delineates the permissive disclosures and obligations of lawyers when engaged in discussions regarding sale of a law practice, a lawyer’s change of employment or changes in the composition or ownership of a firm. The language incorporates ABA Model Rule 1.6(b)(7) regarding the change of employment of a lawyer, and circumstances relating to change of ownership or composition of a firm. It adds language specific to disclosures made in connection with a Rule 1.17A. The language recommended by the Advisory Committee is from Rule 1.6(b)(6) of the Oregon Rules of Professional Conduct, as adopted in January 2005. As a consequence of the addition of 1.6(b)(6), what was formerly subsection (6) is renumbered as subsection (7).