The Risk Manager, Winter 2019
This question concerns the “generally known” exception to client confidentiality in the ABA Model Rule 1.9, Duties to Former Clients, and Kentucky’s rule SCR 3.130 (1.9) Duties to Former Clients. This exception permits a lawyer to use information to the disadvantage of a former client if the information is generally known. Problems with interpretation of generally known led to two recent ABA ethics opinions that provide an excellent overview of the issue and useful guidance on how to determine whether client information is generally known. This article includes the key points made in the opinions and our risk management advice.
Lawyers often use the term confidentiality when referring to the attorney /client privilege, a rule of evidence, and work product immunity, a rule of civil procedure. What must not be lost in this use of confidentiality is the overarching professional conduct rule SCR 3.130(1.6) Confidentiality of information, that establishes a much broader fiduciary duty not to reveal or use client information to the disadvantage of a client unless it is allowed by Rule 1.6 or SCR 3.130(1.9) Duties to former clients.*
ABA Formal Opinion 479, The “Generally Known” Exception to Former-Client Confidentiality (12/15/2017), describes how Rule 1.6 and 1.9 operate to establish a lawyer’s fiduciary duty not to reveal or use client or former client information as follows:
- Model Rule 1.6(a) prohibits a lawyer from revealing information related to a client’s representation unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by Model Rule 1.6(b) (in Kentucky to prevent reasonably certain death or substantial bodily harm; to secure ethics legal advice; to establish a claim or defense to a malpractice claim, a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding, including a disciplinary proceeding, concerning the lawyer's representation of the client; or to comply with other law or a court order).
- Model Rule 1.9 extends lawyers’ duty of confidentiality to former clients.
- Model Rules 1.9(a) and (b) govern situations in which a lawyer’s knowledge of a former client’s confidential information would create a conflict of interest in a subsequent representation.
- Model Rule 1.9(c) “separately regulates the use and disclosure of confidential information” regardless of “whether or not a subsequent representation is involved.
- Lawyers thus have the same duties not to reveal former client confidences under Model Rule 1.9(c)(2) as they have with regard to current clients under Model Rule 1.6.
- In contrast, Model Rule 1.9(c)(1) addresses the use of former client confidential information. Model Rule 1.9(c)(1) provides that a lawyer shall not use information relating to a former client’s representation “to the disadvantage of the former client except as [the Model] Rules would permit or require with respect to a [current] client, or when the information has become 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 – but need not – occur at the same time. The generally known exception applies only to the “use” of former client confidential information. This opinion provides guidance on when information is generally known within the meaning of Model Rule 1.9(c)(1). (emphasis added)
*Editor’s note: The ABA Model Rules 1.6 and 1.9 are virtually identical to the Kentucky Rules of Professional Conduct 1.6 and 1.9. The analysis in the ABA opinions is valid secondary authority for interpreting the Kentucky Rules.
The opinion recognized that what is generally known is counterintuitive. It gave these examples of information that do not qualify as generally known:
- [T]he fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known.
- The content of form pleadings, interrogatories and other discovery materials, as well as general litigation techniques that were widely available to the public through the internet or another source, such as continuing legal education classes, does not make that information ‘generally known.’
- Information that is publicly available is not necessarily generally known. Generally known’ does not only mean that the information is of public record ... The information must be within the basic understanding and knowledge of the public.
- Certainly, if information is publicly available, but requires specialized knowledge or expertise to locate, it is not generally known.
- Generally known does not mean information that someone can find.
- “[T]he Rules contain no exception allowing revelation of information relating to a representation even if a diligent researcher could unearth it through public sources.
- A matter may be of public record simply by being included in a government record . . . whether or not there is any general public awareness of the matter. Information that ‘has become generally known’ is information that is actually known to some members of the general public and is not merely available to be known if members of the general public choose to look where the information is to be found.
The opinion concluded with this advice:
A lawyer may use information that is generally known to a former client’s disadvantage without the former client’s informed consent. Information is generally known within the meaning of Model Rule 1.9(c)(1) if it is widely recognized by members of the public in the relevant geographic area or it is widely recognized in the former client’s industry, profession, or trade. For information to be generally known it must previously have been revealed by some source other than the lawyer or the lawyer’s agents. Information that is publicly available is not necessarily generally known.
ABA Formal Opinion 479 was closely followed by ABA Formal Opinion 480, Confidentiality Obligations for Lawyer Blogging and Other Public Commentary
(3/6/2018). Unlike Opinion 479 that focused on when client confidential information may be used, Opinion 480 deals with avoiding revealing unauthorized client confidential information on social media and in other public forums.
The opinion describes the risk of revealing confidential information in social media and public commentary as follows:
- Lawyers comment on legal topics in various formats. The newest format is online publications such as blogs, listserves, online articles, website postings, and brief online statements or microblogs (such as Twitter®) that “followers” (people who subscribe to a writer’s online musings) read. Lawyers continue to present education programs and discuss legal topics in articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews. They also make public remarks in online informational videos such as webinars and podcasts (collectively “public commentary”).
- Lawyers who communicate about legal topics in public commentary must comply with the Model Rules of Professional Conduct, including the Rules regarding confidentiality of information relating to the representation of a client. …. A violation of Rule 1.6(a) is not avoided by describing public commentary as a “hypothetical” if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical. Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.
- The salient point is that when a lawyer participates in public commentary that includes client information, if the lawyer has not secured the client’s informed consent or the disclosure is not otherwise impliedly authorized to carry out the representation, then the lawyer violates Rule 1.6(a). Rule 1.6 does not provide an exception for information that is “generally known” or contained in a “public record.”
Managing the Risk
- The fact that lawyers may use generally known information even when doing so may disadvantage a former client does not mean it should ever be used without former client consent. If the former client balks at granting consent, you are on notice that using it will likely lead to an ethics complaint or malpractice claim. Several commentators have recommended that you “think twice” before you use former client confidential information.
- When using the social media or commenting in public forums, best practice is to get both current and former clients’ consent in advance to reveal client confidential information. We concur with that advice.