PROFESSIONAL RESPONSIBILITY 49.

III. CLIENT CONFIDENTIALITY

A. GENERAL RULE
As a general rule, a lawyer must not reveal any information relating to the repre-
sentation of the client. A lawyer may, however, reveal such information if the
client gives informed consent, or if the disclosure is impliedly authorized to carry
out the representation. [ABA Model Rule 1.6] The ethical duty is subject to some
additional exceptions, discussed in D., infra. The rationale of the ethical duty is that
50. PROFESSIONAL RESPONSIBILITY

it encourages candor between the lawyer and the client, encourages the client
to seek early legal advice, and helps the lawyer discover all of the information
relevant to the client’s legal problem. [See ABA Model Rule 1.6, comment 2; with
respect to the ethical duty of confidentiality, see generally Restatement §§59 - 67]

B. RELATIONSHIP BETWEEN ETHICAL DUTY OF CONFIDENTIALITY AND

ATTORNEY-CLIENT PRIVILEGE
The ethical duty of confidentiality is closely related to the attorney-client privilege,
but the two doctrines differ in three important ways.

1. Compulsion vs. Gossip

The attorney-client privilege is an exclusionary rule of evidence law. It
prevents a court, or other governmental tribunal, from using the twin powers
of subpoena and contempt to compel the revelation of confidential commu-
nications between an attorney and a client. In contrast, the ethical duty of
confidentiality prohibits an attorney from voluntarily revealing information
relating to the representation of a client—it applies in every context where the
attorney-client privilege does not apply. [See ABA Model Rule 1.6, comment 3]

EXAMPLES
1) During the course of a civil trial, lawyer L’s adversary called her to the wit-
ness stand and posed questions about her confidential communications with
her client. In this context, the rights and duties of L and her client are gov-
erned by the attorney-client privilege, not by the ethical duty of confidentiality.

2) When lawyer L was chatting with a friend at a cocktail party, the friend
asked L for some information that L had gained in the course of representing
one of her clients. In this context, the attorney-client privilege is irrelevant—the
privilege does not apply at cocktail parties. Here, L is governed by the ethical
duty of confidentiality.

2. Kinds of Information Covered

The ethical duty of confidentiality covers more kinds of information than the
attorney-client privilege. The attorney-client privilege protects only confi-
dential communications between the attorney and client (or the agents of
either of them). The ethical duty, in contrast, covers not only confidential
communications, but also any other information that the attorney obtains
relating to the representation of the client, no matter what the source of that
information. The ethical duty thus applies to all information that relates to the
representation of the client, regardless of whether it is privileged, whether
the client asked for it to be kept in confidence, and whether revealing it might
harm or embarrass the client. For purposes of this outline, the term “confiden-
tial information” means all information protected by the duty of confidentiality
expressed in ABA Model Rule 1.6.
 PROFESSIONAL RESPONSIBILITY 51.

EXAMPLE
Attorney A is representing client C in proceedings to challenge the will left by
C’s mother. While conducting her own investigation of the facts of the case,
A learns from a third party that C is the illegitimate son of an itinerant book
salesman. This information is not protected by the attorney-client privilege
because A did not gain it through a confidential communication with C. Nev-
ertheless, under ABA Model Rule 1.6, the information is covered by the ethical
duty of confidentiality.

3. Disclosure vs. Use

The attorney-client privilege concerns only the disclosure of information. In
contrast, the ethical duty of confidentiality concerns both the disclosure and
use of information. An attorney can be disciplined for disclosing a client’s
confidential information without the client’s informed consent (unless one of
the exceptions to the ethical duty is applicable) [ABA Model Rule 1.6(a)], or for
using confidential information to the disadvantage of a client, former client,
or prospective client, without the affected client’s informed consent. [ABA
Model Rules 1.8(b), 1.9(c), 1.18(b)]

C. SUMMARY OF ATTORNEY-CLIENT PRIVILEGE

Because the ethical duty of confidentiality is so closely related to the attorney-
client privilege, the following is a brief summary of the main features of the privi-
lege. [See Restatement §§68 - 86—restates the law of attorney-client privilege]

1. Basic Rule
The attorney-client privilege prohibits a court or other governmental tribunal
from compelling the revelation of confidential communications between an
attorney (or an attorney’s agent) and a client (or a client’s agent) if the subject
of the communication concerns the professional relationship between the
attorney and the client.

2. Client
A “client” means a person or entity that seeks legal services from an attorney.
The privilege covers preliminary communications leading up to an attorney-
client relationship, even if no such relationship develops. [See also ABA
Model Rule 1.18—duty of confidentiality to a prospective client]

EXAMPLE
H wants to hire a lawyer to obtain a dissolution of his marriage. After speaking
in confidence with lawyer L about his marital problems, H decides not to hire
L as his lawyer. Even though no attorney-client relationship ultimately devel-
ops between H and L, the attorney-client privilege protects what H told L in
confidence.
52. PROFESSIONAL RESPONSIBILITY

a. Corporate Clients
When the client is a corporation, the privilege covers communications
between the lawyer and a high-ranking corporate official. It also covers
communications between the lawyer and another corporate employee if
the following conditions are met:

1) The employee communicates with the lawyer at the direction of

the employee’s superior;

2) The employee knows that the purpose of the communication is to

obtain legal advice for the corporation; and

3) The communication concerns a subject within the scope of the

employee’s duties to act for the corporation.

[See Upjohn Co. v. United States, 449 U.S. 383 (1981)]

3. Attorney
An “attorney” means a person who is authorized (or whom the client
reasonably believes to be authorized) to practice law in any state or nation.
However, for the privilege to apply, the attorney must be acting as an
attorney—not in some other capacity, such as a friend, business advisor, or
member of the family.

4. Communication
The term “communication” covers information passed from the client to the
attorney and from the attorney to the client. It also covers information passed
to or from the agents of either the attorney or the client.

EXAMPLE
Whitney Corp. hires attorney A to represent it in a dispute over the construc-
tion of a nuclear power plant. A hires structural engineer E to assist her on the
technical aspects of the case. At A’s direction, E talks with F, the chief engi-
neer of Whitney Corp., to find out certain facts about the case. E’s discussion
with F is covered by the attorney-client privilege.

a. Mechanical Details of Relationship

Usually the attorney-client privilege does not cover the mechanical
details of the attorney-client relationship, such as the identity of the
client, the fee arrangement between the attorney and client, and the
bare fact that the attorney is acting for the client. But these mechanical
details can be protected by the privilege if revealing them is tantamount
to revealing a privileged communication. [See Christopher Mueller &
Laird Kirkpatrick, Evidence §5.19 (6d ed. 2018)]
 PROFESSIONAL RESPONSIBILITY 53.

EXAMPLE
X came to lawyer L’s office and asked to employ L in a confidential
matter. X then said that he was the hit and run driver in the car wreck
reported on the front page of today’s newspaper. X asked L to negoti-
ate with the authorities for him, but not to reveal his identity without first
getting X’s specific permission. Later, the parents of the victim in the hit
and run brought a wrongful death action against a John Doe defendant.
They subpoenaed L and asked her to reveal the identity of the person
who had consulted her about the hit and run. A court cannot compel L to
disclose X’s identity; the attorney-client privilege protects it because to
reveal it would be tantamount to revealing X’s statement that he was the
hit and run driver. [See Baltes v. Doe I, 4 ABA/BNA Lawyer’s Manual on
Professional Conduct 356]

b. Preexisting Documents and Things

The attorney-client privilege covers both oral and written communica-
tions. However, the client cannot protect a preexisting document or thing
from discovery simply by turning it over to the attorney. If the document
or thing would be discoverable in the client’s hands, it is equally discover-
able in the attorney’s hands.

EXAMPLES
1) Client C hires attorney A to defend her in a breach of contract case.
C turns over to A her entire file of records relating to the contract. If the
records would be discoverable when in the possession of C, they are
equally discoverable when in the possession of A.

2) D tells his lawyer, L: “I just shot X, and I threw the revolver in the trash-
can behind my apartment.” The revolver itself is not privileged, but D’s
communication with L about the revolver is privileged. [California v. Mer-
edith, 29 Cal. 3d 682 (1981)] L’s knowledge of the whereabouts of the re-
volver is privileged. If L simply looks in the trashcan to confirm D’s story, D
can invoke the privilege and prevent L from testifying about what he saw.
[Id.] L has no legal or ethical duty to retrieve the revolver from the trash-
can. Furthermore, absent D’s informed consent, L must not tell anyone
where the revolver is. [ABA Model Rule 1.6] If L retrieves the revolver from
the trashcan, he may keep it long enough to obtain from it any information
that may be useful in D’s defense. Then L must turn it over to the proper
authorities. [California v. Meredith, supra; State v. Olwell, 394 P.2d 681
(Wash. 1964)] By removing the revolver from the trashcan, L has destroyed
a valuable piece of evidence—the incriminating location of the revolver.
L’s action requires a compromise between the need to protect privileged
communications and the need for relevant evidence. The compromise
reached in Meredith and Olwell is as follows: The trier of fact will be told
54. PROFESSIONAL RESPONSIBILITY

where the revolver was found, but the trier of fact will not be told that L
was the source of that information. For example, L and the prosecutor can
simply stipulate that the jury at D’s trial will be informed of the location of
the revolver, without telling them the source of that information. However,
if L retrieves the revolver from the trashcan and hides or destroys it, L may
face criminal liability for tampering with evidence, and L is also subject to
professional discipline. [In re Ryder, 263 F. Supp. 360 (E.D. Va. 1967)]

5. “Confidential” Defined
To be covered by the attorney-client privilege, a communication must be
“confidential”; it must have been made by a means not intended to disclose
the communicated information to outsiders, and the communicating person
must reasonably believe that no outsider will hear the contents of the state-
ment.

a. Presence of Third Party

The presence of a third party will not destroy the confidentiality if the
third party was present to help further the attorney-client relationship.
However, the third party need not play a direct role in the communica-
tion and may be present because of the client’s psychological needs
(e.g., a family member accompanying the client). [Restatement §70,
comment f]

EXAMPLE
Five persons were present during an office conference between Client
and Attorney. In addition to Client and Attorney, the persons present
were Client’s accountant (who was there to help explain Client’s books of
account), Attorney’s law clerk (who was there to assist Attorney in draft-
ing some interrogatory answers), and Attorney’s legal secretary (who
was there to take dictation). The presence of the accountant, the law
clerk, and the secretary does not destroy the confidentiality.

COMPARE
During a recess in trial, Attorney and Client discussed Client’s intended
testimony in a crowded courthouse corridor where bystanders could
obviously overhear. This conversation is not confidential for purposes of
the attorney-client privilege. Thus, the privilege does not bar examination
of either Client or Attorney regarding the conversation.

b. Eavesdroppers
In days gone by, the presence of an unsuspected eavesdropper was
sometimes held to destroy the confidentiality of a communication.
Under modern evidence law, that is no longer true; an eavesdropper
can be prohibited from testifying about a confidential communication.
 PROFESSIONAL RESPONSIBILITY 55.

6. Client Is Holder of Privilege

The attorney-client privilege exists for the benefit of the client, not for the
benefit of the attorney. Therefore, the client is the “holder” of the privilege—
i.e., the client is the one who can claim or waive the privilege.

a. Waiver of Privilege
A waiver consists of a failure to claim the privilege when there is an
opportunity to do so, or the intentional revelation of a significant portion
of the privileged communication.

EXAMPLE
Client C shows his next-door neighbor the first two pages of a three-
page privileged letter. In a later civil case, C’s adversary can compel
production of the entire letter. C has waived the privilege.

1) Client Puts Legal Services at Issue

The client may also waive the privilege by asserting a claim or
defense that puts the legal services at issue in the case. For
example, where a defendant appeals a criminal conviction on the
basis of ineffective assistance of counsel at trial, the communica-
tions between the defendant and the trial attorney are not privi-
leged. [Restatement §80]

b. Lawyer’s Duty to Invoke Privilege

If the client has not waived the privilege, and if someone tries to obtain
privileged information when the client is not present, the lawyer must
claim the privilege on the client’s behalf.

EXAMPLE
Lawyer L represents client C in a civil case. On a day when C is not pres-
ent in court, C’s adversary calls L to the witness stand and poses ques-
tions about confidential communications between C and L. L must claim
the privilege on C’s behalf.

7. Duration of Privilege
The attorney-client privilege continues indefinitely. Termination of the
relationship, even for cause, does not terminate the privilege. The privilege
even survives the death of the client. [Swidler & Berlin v. United States, 524
U.S. 399 (1998)] Thus, a lawyer has a continuing obligation to assert the privi-
lege on behalf of a client who has died, subject to exceptions relating to the
deceased’s disposition of property. [Restatement §77, comment c]

8. Exceptions to Privilege
Modern evidence law provides several exceptions to the attorney-client privilege.
56. PROFESSIONAL RESPONSIBILITY

a. The privilege does not apply if the client seeks the attorney’s services
to engage in or assist a future crime or fraud. [See Restatement §82]

b. The privilege does not apply to a communication that is relevant to

an issue of breach (by either the attorney or the client) of the duties
arising out of the attorney-client relationship. [Id. §83]

c. The privilege does not apply in civil litigation between two persons
who were formerly the joint clients of the attorney. [Id. §75(2)]

d. The privilege does not apply in a variety of situations in which the

attorney can furnish evidence about the competency or intention of a
client who has attempted to dispose of property by will or inter vivos
transfer.

9. Related Doctrine of Work Product Immunity

Generally, material prepared by a lawyer for litigation or in anticipation of
litigation is immune from discovery or other compelled disclosure unless
the opposition shows a substantial need for the material and an inability to
gather the material without undue hardship. A lawyer’s mental impressions
or opinions are immune from discovery or compelled disclosure regard-
less of the opposition’s need unless the immunity has been waived. [See
Restatement §§87 - 93]

D. ETHICAL DUTY OF CONFIDENTIALITY AND ITS EXCEPTIONS

As explained previously (see B.1., supra), the ethical duty of confidentiality applies
in every context in which the attorney-client privilege does not apply. The ethical
duty also covers a broader range of information than the privilege. Finally, the
ethical duty concerns not only the disclosure of information, but also the use of
information to the disadvantage of a client, a prospective client, or a former client.

1. Duty Not Destroyed by Presence of Third Party

Unlike the attorney-client privilege, the presence of a nonprivileged third
person does not necessarily destroy an attorney’s duty of confidentiality.
Confidential information remains confidential even if it is known to others,
unless the information becomes generally known. Whether information is
generally known depends on all the surrounding circumstances, but informa-
tion is not generally known when it can be obtained only by means of special
knowledge or substantial difficulty or expense.

2. Exceptions to the Duty of Confidentiality

The exceptions to the ethical duty are discussed separately in the following
paragraphs.

a. Client’s Informed Consent

An attorney may reveal or use confidential information if the client gives
informed consent. [ABA Model Rule 1.6(a)] Remember that “informed
 PROFESSIONAL RESPONSIBILITY 57.

consent” means that the client agrees to a proposed course of action

after the lawyer has adequately explained the risks and reasonable alter-
natives. [ABA Model Rule 1.0(e)]

EXAMPLE
Attorney A is representing defendant D in an armed robbery case. D
reluctantly tells A that at the time of the alleged robbery, D was 10 miles
away visiting a house of prostitution, and that at least five witnesses can
vouch for his presence there. A may disclose and use this embarrassing
information in the defense of the armed robbery case if D gives informed
consent.

b. Implied Authority
An attorney has implied authority from the client to use or disclose
confidential information when appropriate to carry out the represen-
tation—unless, of course, the client gives specific instructions to the
contrary. [ABA Model Rule 1.6(a)]

EXAMPLES
1) Lawyer L represents client A in negotiating a construction contract.
Unless A instructs L to the contrary, L has implied authority to disclose
confidential information about A’s business if that will serve A’s interests
in the negotiation. [ABA Model Rule 1.6, comment 5]

2) Lawyer M represents client B in litigation. Unless B instructs M to the

contrary, M has implied authority to disclose confidential information in a
fact stipulation if that will serve B’s interests in the litigation. [Id.]

3) Lawyer N is drawing up a will and a trust agreement for client C. Un-

less C instructs N to the contrary, N has implied authority to discuss C’s
confidential information with other lawyers in N’s firm if that will serve C’s
interests. [Id.]

4) Lawyer O is representing client D in a bankruptcy case. Unless D

instructs O to the contrary, O has implied authority to allow her parale-
gal, her law clerk, her legal secretary, and the law firm’s copy-machine
operator to have access to D’s confidential business papers. However, O
must take reasonable steps to assure that those employees preserve the
confidentiality of the information. [ABA Model Rule 5.3; ABA Formal Op.
95-398 (1995)]
5) Lawyer Q is representing X Corp. in secret merger negotiations with Y
Corp. Secrecy is vital because if word leaks out, the stock prices of the
two companies will move apart, making the merger impossible. On one
knotty issue, Q seeks the informal, uncompensated advice of his friend,
58. PROFESSIONAL RESPONSIBILITY

lawyer R, a merger expert in a different law firm. Q poses the issue to R

in the form of a hypothetical that does not identify either X Corp. or Y
Corp. by name. Unfortunately, Q is careless in posing the hypothetical,
which allows R to deduce the identities of X Corp. and Y Corp. Q is sub-
ject to discipline for breaching the duty of confidentiality. A lawyer may
use a hypothetical to obtain advice from a fellow lawyer for the benefit
of the client, but the hypothetical must be discreet enough to preclude
any reasonable chance that the fellow lawyer will be able to deduce the
identity of the client or the situation at hand. [ABA Model Rule 1.6, com-
ment 4; ABA Formal Op. 98-411]

c. Disclosure to Prevent Death or Substantial Bodily Harm

ABA Model Rule 1.6(b)(1) permits a lawyer to reveal the client’s confi-
dential information to the extent that the lawyer reasonably believes
necessary to prevent reasonably certain death or substantial bodily
harm. Note that the exception applies to death or bodily harm whatever
the cause; it need not be caused by the client, and the cause need not
be a criminal act. Notice also that the death or bodily harm need not be
imminent—it need only be reasonably certain. Finally, notice that the
exception gives the lawyer discretion to disclose the confidential infor-
mation; it does not require disclosure. Some states, however, do require
disclosure.

EXAMPLES
1) Kidnapper K is in custody pending trial, and he hires attorney A to
defend him against a charge that he kidnapped and murdered victim V.
K tells A in confidence where he buried V’s body. This is a completed
crime—disclosure of K’s secret could not prevent death or substantial
bodily harm to anyone. If A reveals K’s secret, A will be subject to disci-
pline.
2) Kidnapper J telephones attorney B and asks for B’s legal advice. J tells
B in confidence that he has kidnapped victim U, that he has her bound
and gagged in the back of his van, and that he is on the road to Lone-
some Pine, where he plans to hold U for ransom. The legal advice J seeks
from B is whether the penalty for murder is more serious than the penalty
for kidnapping for ransom. B promises to call J back in a few minutes. B
then telephones the police, tells them the situation, and tells them that
J is on the road to Lonesome Pine. B’s conduct is proper in light of the
reasonably certain risk of death or substantial bodily injury to U.

d. Disclosure to Prevent or Mitigate Substantial Financial Harm

A lawyer may reveal the client’s confidential information to the extent
necessary to prevent the client from committing a crime or fraud that is
 PROFESSIONAL RESPONSIBILITY 59.

reasonably certain to result in substantial financial harm to someone,

if the client is using or has used the lawyer’s services in the matter.
The same is true if the client has already acted, and the lawyer’s
disclosure can prevent or mitigate the consequent financial harm. [See
Restatement §67; ABA Model Rule 1.6(b)(2), (3)]

e. Dispute Concerning Attorney’s Conduct

An attorney may reveal a client’s confidential information to the extent
necessary to protect the attorney’s interests in a dispute that involves
the conduct of the attorney. [ABA Model Rule 1.6(b)(5)] In using this
exception, the attorney should: (1) reveal only what is necessary, (2)
attempt to limit the disclosure to those who need to know it, and (3)
obtain protective orders or take other steps to minimize the risk of
unnecessary harm to the client. [ABA Model Rule 1.6, comment 14]

EXAMPLES
1) Attorney A represented client C in a child custody case. C told A in
confidence about C’s emotional difficulties, alcoholism, and inability to
hold steady employment. These confidential disclosures made the task
of representing C vastly more difficult and time-consuming than A had
originally anticipated. C ultimately lost the child custody case. C then
refused to pay A’s legal fee, claiming that it was unreasonably high. If A is
unable to settle the fee dispute amicably and has to sue C to collect the
fee, A may reveal C’s confidential disclosures to the extent necessary to
prove why A’s fee is reasonable under the circumstances. [ABA Model
Rule 1.6(b)(5)]

2) Lawyer L defended client D in an arson case. D told L in confidence

that he did burn the building, hoping to collect the fire insurance. After
careful consideration, D followed L’s advice and did not testify on his
own behalf at the trial. Furthermore, L refused to call two alibi witnesses
whose testimony L knew would be false. D was convicted. D then sued
L for legal malpractice. In defending against D’s malpractice claim, L may
reveal as much of D’s confidential disclosures as is necessary to prove
why L did not present the testimony of D and the two alibi witnesses. [Id.]

3) In the arson example described above, instead of suing L for malprac-

tice, D filed a complaint with the state bar, accusing L of incompetence in
the conduct of the trial. At the disciplinary hearing, L may reveal as much
of D’s confidential disclosures as is necessary to prove why L did not
present the testimony of D and the two alibi witnesses. [Id.]

4) Client T hired attorney Y to help him form a limited partnership ven-

ture for real estate investments. T furnished Y with confidential data for
Y to use in preparing financial statements and other documents needed
60. PROFESSIONAL RESPONSIBILITY

in connection with the sale of the partnership shares. Unbeknownst to

Y, some of the confidential data was fraudulent, and T’s partners lost
their investments as a consequence. Two of the partners confronted Y
and accused him of being knowingly involved in the fraud. Y may reveal
enough of T’s confidential information to convince the partners that Y did
not know that the data was fraudulent, even though Y has not yet been
formally charged with a criminal or civil wrong or a disciplinary violation.
[See ABA Model Rule 1.6, comment 10] This illustrates the doctrine called
“preemptive self-defense.” [See Hazard & Hodes, §10.37]

f. Disclosure to Obtain Legal Ethics Advice

A lawyer may disclose enough of the client’s confidential information
as is necessary to obtain legal ethics advice for the lawyer. [ABA Model
Rule 1.6(b)(4)]

EXAMPLE
Client C came to attorney A’s office carrying a mysterious package about
the size of a shoebox. C explained that federal narcotics agents were
looking for C in connection with the illegal importation of a significant
quantity of uncut heroin; C told A that he had no connection with any
heroin or any other drug trade. A agreed to represent C, and he asked C
for a $5,000 advance on attorneys’ fees. C replied that he had no ready
cash, but that he would entrust A with the mysterious package, assuring
A that its contents were worth much more than $5,000. A was uncertain
about his ethical obligations in this situation so he excused himself, went
to another room, and telephoned T, his old legal ethics professor. After
disclosing enough facts to give T the essence of the problem—but not
enough to disclose C’s identity or the precise circumstances—A asked T
for legal ethics advice. A’s disclosure was proper. [Id.]

g. Disclosure to Detect and Resolve Conflicts of Interest

When a lawyer changes firms, when two firms merge, or when a law
practice is being purchased, lawyers may disclose limited client infor-
mation (e.g., client names and a brief summary of the general issues
involved) in order to detect and resolve conflicts of interest, subject
to four conditions: (1) the disclosure may be made only after substan-
tive discussions regarding the new relationship have occurred; (2) the
disclosure must be limited to the minimum necessary to detect any
conflicts of interest; (3) the disclosed information must not compromise
the attorney-client privilege or otherwise prejudice the clients; and (4)
the disclosed information may be used only to the extent necessary to
detect and resolve any conflicts of interest. [ABA Model Rule 1.6(b)(7)
and comments 13 and 14]
 PROFESSIONAL RESPONSIBILITY 61.

h. Disclosure Required by Law or Court Order

ABA Model Rule 1.6(b)(6) permits a lawyer to reveal her client’s confiden-
tial information to the extent that she is required to do so by law or court
order.

EXAMPLES
1) Suppose that a federal anti-terrorism statute arguably requires lawyer
L to reveal the whereabouts of client C, who is suspected of illegal entry
into the United States. If L knows of C’s whereabouts only because of a
confidential communication from C, the information is protected by both
the attorney-client privilege and the ethical duty of confidentiality. L must
first determine whether the anti-terrorism statute purports to supersede
the privilege and ethical duty. [See ABA Model Rule 1.6, comment 12] If L
concludes that it does, she must next disclose the situation to C because
this is the kind of vital information that a lawyer must communicate to
a client. [See ABA Model Rule 1.4(a)(3)] If L cannot find a nonfrivolous
ground for challenging the validity or applicability of the statute, ABA
Model Rule 1.6(b)(6) permits her to reveal the information about C’s
whereabouts. [See ABA Model Rule 1.6, comments 12 and 13]

2) In the situation described in 1), above, suppose that a federal district

judge is considering whether to order L to disclose C’s whereabouts. Ab-
sent C’s informed consent to the disclosure, L should assert all nonfrivo-
lous grounds for not disclosing the information. If the court orders disclo-
sure, L should consult with C about an appeal. If no appeal is taken, or if
the order is upheld on appeal, then ABA Model Rule 1.6(b)(6) permits L to
reveal the information about C’s whereabouts. [Id.]

3. Protecting Confidential Information

A lawyer must make reasonable efforts to protect a client’s confidential
information from inadvertent or unauthorized disclosure by the lawyer and
those under the lawyer’s supervision, and from unauthorized access by third
parties. [ABA Model Rule 1.6(c)] The reasonableness of the lawyer’s efforts is
determined by considering such factors as the sensitivity of the client’s infor-
mation, the cost of additional safeguards, and the difficulty of implementing
the safeguards. [ABA Model Rule 1.6, comment 18]

a. Office Sharing by Lawyers

Lawyers in office-sharing arrangements must take particular care to
protect client confidences. This might include having separate waiting
areas, refraining from leaving client files in shared spaces, installing
privacy screens on computer monitors, and conducting regular
training to remind staff of the importance of confidentiality. If the
lawyers engage in occasional, informal consultations, they must take
62. PROFESSIONAL RESPONSIBILITY

care to protect client confidences, such as by speaking in carefully

worded hypotheticals that protect client identity and other confiden-
tial matters. Failure to take these precautions may result in the second
lawyer assuming obligations of confidentiality and give rise to conflicts
problems. [ABA Formal Op. 507 (2023)]