Section 3.2: Exceptions to Confidentiality (Rule 1.6(b))

Exceptions to Confidentiality (Rule 1.6(b))

The Permissive Nature of Exceptions

Model Rule 1.6(b) establishes several specific exceptions under which a lawyer is permitted—but not required—to reveal confidential information relating to the representation. The MPRE frequently tests the precise boundaries of these exceptions, as well as the fundamental rule that these exceptions are permissive. Under Rule 1.6, a lawyer is never ethically disciplined for choosing not to disclose information under these exceptions. However, candidates must be aware that other rules, such as Rule 3.3 (Candor Toward the Tribunal) or Rule 4.1 (Truthfulness in Statements to Others), may make disclosure mandatory in certain situations where it would otherwise be permissive under Rule 1.6.

When a lawyer decides to disclose information under a Rule 1.6(b) exception, the disclosure must be limited to no more than is reasonably necessary to accomplish the purpose of the exception. The lawyer should make reasonable efforts to limit access to the information, such as seeking protective orders or in-camera reviews where appropriate.

Preventing Death or Substantial Bodily Harm (Rule 1.6(b)(1))

Under Rule 1.6(b)(1), a lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.

Key elements of this exception include:

• Reasonable Certainty: The harm is reasonably certain if it will suffer imminent execution or if there is a present and substantial threat that a person will suffer such harm. It does not require that the harm occur immediately, but there must be a clear and present danger.
• No Lawyer Services Required: Unlike the financial injury exceptions, this exception applies regardless of whether the client is using the lawyer's services. The threat could come from the client, a third party, or even a natural hazard.
• Not Limited to Crimes: The threatened act does not need to be a crime. For example, if a client tells their lawyer that they accidentally spilled toxic chemicals into a municipal water reservoir, the lawyer may disclose this information to prevent widespread physical harm, even if the spill was a pure accident and not a crime.
• Preventative Only: The exception only applies to prevent future harm or ongoing harm that has not yet culminated. If a client confesses to a past murder for which they are not currently being sought, the death is already complete and cannot be prevented. Thus, the lawyer cannot reveal the confession. However, if the client tells the lawyer that an innocent person is currently on trial and facing execution for a murder the client committed, the death of the innocent person is preventable, and the lawyer may disclose the information to save the innocent person's life.

Preventing or Rectifying Financial Crime or Fraud (Rules 1.6(b)(2) & (3))

The Model Rules provide two distinct exceptions for client crimes or frauds that cause substantial financial or property injury. These exceptions represent a careful balance between client loyalty and protecting the public from financial ruin.

Preventing Future Financial Injury (Rule 1.6(b)(2))

A lawyer may reveal confidential information to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another.

Mitigating or Rectifying Past Financial Injury (Rule 1.6(b)(3))

A lawyer may reveal confidential information to prevent, mitigate, or rectify a substantial financial or property injury that has already resulted, or is reasonably certain to result, from the client's commission of a crime or fraud.

The Crucial Condition: Use of Lawyer's Services

For both Rule 1.6(b)(2) and Rule 1.6(b)(3) to apply, there is an absolute, non-negotiable requirement: the client must have used or be using the lawyer's services in furtherance of the crime or fraud.

If a client uses a lawyer to draft a contract, write a legal opinion, or prepare a financial disclosure statement, and the lawyer later discovers that the client is using or has used those very documents to defraud a bank, the lawyer may disclose the client's fraud. However, if the client defrauds a bank using their own materials, and merely tells the lawyer about it during a consultation, the lawyer cannot disclose the information under these exceptions. The lawyer's services were not used to commit the fraud, meaning confidentiality remains absolute.

Securing Ethical Advice (Rule 1.6(b)(4))

Under Rule 1.6(b)(4), a lawyer may reveal confidential information to secure legal advice about the lawyer's compliance with the Rules of Professional Conduct.

Lawyers frequently face complex ethical dilemmas and need to consult with ethics specialists, bar counsel, or senior colleagues. This exception ensures that a lawyer can describe a client's situation in detail to obtain ethical guidance without violating their duty of confidentiality. Typically, these consultations are confidential themselves, protecting the client's interests while allowing the lawyer to obtain necessary professional guidance.

Lawyer Self-Defense and Fee Disputes (Rule 1.6(b)(5))

Rule 1.6(b)(5) provides the "self-defense" exception, allowing a lawyer to reveal confidential information to the extent necessary to protect their own legal and professional interests. A lawyer may disclose information to:

1. Establish a Claim or Defense in a Dispute with the Client: This is most commonly applied in fee disputes. If a client refuses to pay their bill, the lawyer may disclose confidential information (such as hours worked, tasks performed, and client communications) to prove the reasonableness of the fee.
2. Defend Against Criminal Charges or Civil Claims: If the lawyer is criminally prosecuted or sued civilly based on conduct in which the client was involved (such as a lawsuit alleging that the lawyer aided and abetted a client's securities fraud), the lawyer may disclose confidential information to establish their innocence.
3. Respond to Allegations in Disciplinary Proceedings: If a client files a formal bar complaint alleging malpractice or ethical misconduct, the lawyer may reveal confidential information to defend themselves before the disciplinary board.

The lawyer does not need to wait for the formal filing of a lawsuit or charge to disclose the information; they may disclose it when a controversy is reasonably imminent. However, the disclosure must be strictly limited to the specific allegations and made only to those who need to know.

Complying with Court Orders or Other Law (Rule 1.6(b)(6))

Under Rule 1.6(b)(6), a lawyer may reveal confidential information to comply with other law or a court order.

When a lawyer is ordered by a judge or an administrative body to disclose client information:

1. Assert the Shield First: The lawyer must not simply hand over the information. The lawyer has an obligation to assert all non-frivolous claims of attorney-client privilege or work-product protection.
2. Abide by the Order: If the court overrules the objections and orders the lawyer to disclose the information, the lawyer must comply. The lawyer may seek to appeal the order, but if the order is final, the ethical duty of confidentiality is overridden, and the lawyer will not face disciplinary action for complying.

Detecting and Resolving Conflicts of Interest (Rule 1.6(b)(7))

Rule 1.6(b)(7) allows lawyers to disclose limited confidential information to detect and resolve conflicts of interest when changing firms, merging firms, or selling a practice.

This exception is subject to strict limitations:

• Timing: The disclosure may only occur after substantive discussions regarding the employment change or merger have taken place.
• Limited Scope: The disclosure must be limited to basic, non-sensitive facts, such as the identities of clients, the general subject matters of the representations, and whether the matters are active.
• No Prejudice: The disclosure must not compromise the attorney-client privilege or prejudice the client. If revealing the client's identity would reveal sensitive plans (such as a planned corporate acquisition or a confidential criminal investigation), the lawyer cannot disclose it without the client's informed consent.