12.2 ABA Model Rules & Confidentiality

The Structure of the ABA Model Rules

The ABA Model Rules of Professional Conduct were adopted by the ABA House of Delegates in 1983, replacing the 1969 Model Code of Professional Responsibility, and were substantially revised by the Ethics 2000 Commission amendments in 2002. A critical exam point: the Model Rules are a model only — they bind no one until a jurisdiction adopts them. Each state's highest court enacts its own version, so the numbering is nearly uniform while the text varies by state. Paralegals are rarely regulated directly by state rules; they are bound indirectly through their supervising attorneys (Rule 5.3) and through professional codes such as the NALA Code of Ethics and Professional Responsibility and the NFPA Model Code, which deliberately mirror the Model Rules.

The rules are organized into eight subject-matter groups:

Each rule is followed by official Comments that explain and illustrate the rule — guidance, not binding text. The Preamble and Scope section explains the rules' purpose and the terminology definitions live in Rule 1.0.

Three Doctrines You Must Keep Separate

Duty of Confidentiality — Model Rule 1.6

The ethical duty of confidentiality states that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, disclosure is impliedly authorized, or an exception applies. It is the broadest of the three doctrines: it covers information from any source (not just the client), applies in every context (cocktail party, social media, elevator — not just court), lasts forever (it survives the end of the representation and even the client's death), and its violation leads to professional discipline.

Attorney-Client Privilege

The attorney-client privilege is a rule of evidence, not an ethics rule. It protects confidential communications between a client (or prospective client) and an attorney made for the purpose of obtaining or providing legal advice. Key limits: it covers communications only (not underlying facts — a client cannot hide a document by mailing it to a lawyer); the advice must be legal, not business; the client holds the privilege and alone can waive it; and it applies only when disclosure is compelled (subpoena, deposition, testimony). For corporate clients, Upjohn Co. v. United States (1981) extended the privilege beyond the 'control group' to communications with employees made at the direction of superiors to secure legal advice for the corporation.

Work-Product Doctrine

The work-product doctrine, from Hickman v. Taylor (1947) and codified in Federal Rule of Civil Procedure 26(b)(3), protects documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative — which expressly includes paralegal interview memos and investigation summaries. Protection is qualified: an opponent can obtain fact work product on a showing of substantial need and inability to obtain the equivalent without undue hardship. But opinion work product — an attorney's mental impressions, conclusions, opinions, and legal theories — receives near-absolute protection.

Exceptions to Rule 1.6

Rule 1.6(b) lists permissive exceptions — the lawyer may reveal, not must (some states make the first one mandatory):

1. (b)(1) To prevent reasonably certain death or substantial bodily harm — note the modern standard no longer requires the client's act to be criminal.
2. (b)(2) To prevent the client from committing a crime or fraud reasonably certain to cause substantial financial or property injury, where the client is using or has used the lawyer's services in furtherance of it.
3. (b)(3) To prevent, mitigate, or rectify such substantial financial injury from a past client crime or fraud involving the lawyer's services.
4. (b)(4) To secure legal advice about the lawyer's own compliance with the Rules.
5. (b)(5) Self-defense — to establish a claim or defense in a controversy with the client, to defend against a criminal charge or civil claim, or to respond to allegations about the representation.
6. (b)(6) To comply with other law or a court order.
7. (b)(7) To detect and resolve conflicts of interest arising from changes in employment or firm composition.

Two traps: unlike the old Model Code, there is no general exception for any future crime — only death/substantial bodily harm and the lawyer-involved financial crime-fraud exceptions. And do not confuse Rule 1.6's exceptions with the privilege's separate crime-fraud exception: communications made in furtherance of a crime or fraud are simply not privileged at all.

Inadvertent Disclosure

Model Rule 4.4(b) governs the receiving side: a lawyer who receives a document or electronically stored information relating to the representation and knows or reasonably should know it was inadvertently sent must promptly notify the sender. On waiver, Federal Rule of Evidence 502 controls in federal proceedings: under 502(b) an inadvertent disclosure does not waive the privilege if the holder took reasonable steps to prevent disclosure and reasonable steps to rectify the error (including following FRCP 26(b)(5)(B) return-or-sequester procedures), and under 502(d) a federal court order can decree that disclosure in that litigation is not a waiver in any other proceeding. Practice pointers: scrub document metadata, beware reply-all, and use claw-back agreements.

Confidentiality in the Digital Age

Rule 1.1 (Competence), Comment 8 requires lawyers to keep abreast of the benefits and risks of relevant technology — tech competence is now part of legal competence in the clear majority of states. Rule 1.6(c) requires reasonable efforts to prevent inadvertent or unauthorized disclosure of, or unauthorized access to, client information. Reasonable efforts today include encryption for sensitive files, strong passwords and multi-factor authentication, vetting cloud providers, avoiding unsecured public Wi-Fi (or using a VPN), and never pasting client confidences into public generative AI tools. Paralegals, who handle the bulk of a firm's files, are on the front line of every one of these duties.