1-6
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31-36
37-42
43-48
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55-60
61-66
67-72
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109-114
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experience, lawyers know that almost all clients follow the advice given, and the law is upheld.
[4] A fundamental principle in the client-lawyer relationship is that the lawyer maintain
confidentiality of information relating to the representation. This contributes to the trust that is the
hallmark of the client-lawyer relationship. The client is thereby encouraged to communicate fully
and frankly with the lawyer even as to embarrassing or legally damaging subject matter.
[5] The principle of lawyer-client confidentiality is given effect by related bodies of law,
including the attorney-client privilege, the work-product doctrine, and the rule of confidentiality
established in professional ethics. The attorney-client privilege applies 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. A lawyer may not disclose such
information except as authorized or required by the Rules of Professional Conduct or other law.
See also Scope.
[6] The requirement of maintaining confidentiality of information relating to representation
applies to government lawyers who may disagree with the policy goals that their representation is
designed to advance.
[7] Paragraph (a) prohibits a lawyer from revealing information relating to the
representation of a client. This prohibition 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 hypotheticals 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.
[8] A lawyer is impliedly authorized to make disclosures about a client when appropriate in
carrying out the representation, except to the extent that the client's instructions or special
circumstances limit that authority. In litigation, for example, a lawyer may disclose information by
admitting a fact that cannot properly be disputed, or in negotiation by making a disclosure that
facilitates a satisfactory conclusion.
[9] 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
[10] Although the public interest is usually best served by a strict rule requiring lawyers to
preserve the confidentiality of 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 death or substantial bodily harm. Substantial bodily harm includes life threatening and
debilitating illnesses and the consequences of child sexual abuse. Such injuries are reasonably
certain to occur if they will be suffered imminently or if there is a present and substantial threat that
a person will suffer such injuries at a later date if the lawyer fails to take action necessary to
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.
[11] Paragraph (b)(2) enables the lawyer to reveal information to the extent necessary to
prevent the client from committing a crime. The client can, of course, prevent such disclosure by
refraining from the wrongful conduct. Although Paragraph (b)(2) does not require that the lawyer
reveal the client’s misconduct, the lawyer may not in any way counsel the client to engage, or assist
the client, in conduct that 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. Where the client is an organization, the lawyer may be in doubt
whether contemplated conduct will actually be carried out by the organization’s constituents. Where
necessary to guide conduct in connection with this Rule, the lawyer may make inquiry within the
organization as indicated in Rule 1.13(b). Rule 3.3, rather than Paragraph (b)(2) governs disclosure
of a client’s intention to commit perjury or other crimes in connection with an adjudicative
proceeding.
[12] Paragraph (b)(3) addresses the situation in which a lawyer services have been used by
the client in furtherance of the client’s commission of a crime or fraud, but the lawyer does not
discover this misuse of the lawyer’s services until after the crime or fraud has been consummated
and loss has been suffered by the victim. Although the client no longer has the option of preventing
disclosure by refraining from the wrongful conduct, there will be situations in which a substantial
loss suffered by the affected person can be rectified or mitigated. In such situations, the lawyer
may disclose information relating to representation to the extent necessary to assist the affected
persons recoup their losses.
[13] A lawyer’s confidentiality obligations do not preclude a lawyer from securing legal
advice about the lawyer’s personal 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. For the protection of the client, such disclosures may be made only if they will be
protected by the attorney-client privilege.
[14] 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 or professional disciplinary 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, of course, applies where a proceeding
has been commenced. Where practicable and not prejudicial to the lawyer's ability to establish the
defense, the lawyer should advise the client of the third party's assertion and request that the client
respond appropriately. In any event, disclosure should be no greater than the lawyer reasonably
believes is necessary to vindicate innocence, the disclosure should be made in a manner which limits
protective orders or other arrangements should be sought by the lawyer to the fullest extent
practicable.
[15] A lawyer entitled to a fee is permitted by paragraph (b)(5) 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. As stated above, the
lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to
a representation, to limit disclosure to those having the need to know it, and to obtain protective
orders or make other arrangements minimizing the risk of disclosure.
[16] Paragraph (b) permits but does not require the disclosure or use of information relating
to a client’s representation to accomplish the purposes specified in paragraphs (b)(1) through (5).
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. Where practical, the lawyer should seek to persuade the client to take suitable action. In
any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably
believes necessary to the purpose. A lawyer's decision not to take preventive action permitted by
paragraph (b) does not violate this Rule.
[17]The Rules of Professional Conduct in various circumstances permit or require a
lawyer to disclose information relating to the representation. See Rules 2.2, 2.3, 3.3 and 4.1. In
addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to
give information about a client. Whether another provision of law supersedes Rule 1.6 is a matter of
interpretation beyond the scope of these Rules.
[18]A lawyer must also comply with lawful orders of a tribunal, an administrative or
executive agency, or a legislative body. If a lawyer is called as a witness to give testimony
concerning a client, or is otherwise ordered to reveal information relating to the client’s
representation, the lawyer must, absent authorization from the client to do otherwise, assert on
behalf of the client all non-frivolous claims 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 should consult with the client about the possibility of appealing the adverse ruling. See
Rule 1.4 and 1.2. Unless an appeal is taken, the lawyer must comply with the order.
[19]A lawyer must act competently to safeguard information relating to the representation
of a client against inadvertent or unauthorized disclosure by the lawyer or by 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.
[20] When transmitting a communication that includes information relating to the
representation 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 utilize 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
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.
[21] The duty of confidentiality continues after the client-lawyer relationship has been
terminated. See Rule 1.9(c).
See Rule 1.0(c)
“Fraud”See Rule 1.0(e)
“Reasonably”See Rule 1.0(i)
“Reasonably Believes”See Rule 1.0(j)
“Substantial”See Rule 1.0(l)
“Tribunal”See Rule 1.0(m)
Paragraph (a):The reference to “information relating to the representation of the client”
encompasses more information than embraced by DR 4-101(A)’s reference to “confidences” and
“secrets.”This is because DR 4-101(A) defined a “secret” in terms of information "gained in"
the professional relationship that "the client has requested be held inviolate or the disclosure of
which would be embarrassing or would be likely to be detrimental to the client."
Paragraph (b)(5):DR 4-101(C)(4) permits disclosures “necessary to establish or collect
his fee or to defend himself or his employees or associates against an accusation of wrongful
conduct.”
Paragraph (c):DR 4-101(C)(2) permits disclosure “when . . . required by law or court
order.”
Paragraph (b)(1):Proposed Rule 1.6(b)(1) tracks ABA Model Rule 1.6(b)(1), only permits
disclosure to prevent the client as well as the client, from committing a crime likely to result in
imminent death or substantial bodily harm.
Paragraphs (b)(2) and (3): The Model Rules does not permit disclosure to prevent the client
from committing a crime or to rectify substantial resulting from a crime or fraud in the commission
of which the client’s had used the lawyer’s services.
Paragraph (b)(5) is identical to the ABA Model Rule 1.6(b)(2).
Paragraphs (a), (b)(5), and (c) are the same as paragraphs (A), (B)(4), and (C)(2) in the
Preliminary Draft.
Paragraph (b)(1): The Committee has broadened the grant of permission to lawyers to
reveal information relating to the representation of a client for the purpose of preventing death or
substantial bodily. Disclosure is now permitted without any requirement that it be the result client’s
crime. Also the death or injury no longer must be imminent. It is sufficient if the harm is
reasonably certain to occur. This change is consistent with the American Law Institute Restatement
of the Law Governing Lawyers.
Paragraph (b)(2): Paragraph (b)(2) is new and permits disclosure to prevent the commission
of any crime (with an exception for those crimes against the administration of justice that are
addressed by Rule 3.3). This carries forward into the proposed rule the permission to reveal client
confidences and secrets granted by DR 4-101(c)(3).
Deletion of Paragraph (B)(3) of the Preliminary Draft:The Committee deleted paragraph
(B)(3) that permitted disclosure "to inform a law firm with whom the lawyer proposes to associate,
or with whom the lawyer has associated, of the identity of the lawyer’s clients, and general subject
matter of the representation of those clients, but only if the lawyer reasonably believes that such
disclosure will not materially disadvantage the client." Given the limited nature of the information
involved and the generally accepted practice among lawyers, the Committee concluded that this
exception was not necessary.
Paragraph (b)(3):Paragraph (b)(3) is new and permits disclosure to rectify or mitigate
substantial financial loss resulting from a client’s crime or fraud in which the client used the
lawyer’s services. The rationale for this exception is that the client has abused the attorney-client
relationship by using the lawyer’s services to commit the crime or fraud and has thereby forfeited
the protections of Rule 1.6.
Paragraph (b)(4):Paragraph (b)(4) represents a tighter formulation of the exception in
paragraph (B)(2) of the Preliminary Draft. The change has no effect on the scope of the exception.
Paragraph (c)(1):The Committee has deleted the references to "an agency" so the lawyer is
only required to comply with orders of a "tribunal."The Committee thinks that confidentiality is so
important that lawyers should only be required to abide by the order of a court or a comparable
adjudicative body.
Made
1. For different reasons, the Knoxville Bar Association and the East Tennessee Victim’s
Rights Task Force have voiced concern about the Committee’s recommendation that Rule 1.6
protect all “information relating to the representation of a client.” The KBA’s concern is that the
breadth of the protection will unnecessarily prohibit lawyers from sharing information acquired
during a representation that would help educate the bar or facilitate settlement and mediation. The
Victim’s Rights Task Force, on the other hand, objects because Rule 1.6 protects more than the
client’s communications with the lawyer and affords lawyers a shield behind which they can hide to
avoid what most citizens would consider our obligations to our communities.
The Committee concedes that Rule 1.6 protects more information than protected by the DR
4-101, which only protects “confidences” and “secrets.”The essential difference is that Rule 1.6
precludes disclosure of information relating to the representation without regard to whether
disclosure would be embarrassing or would likely to detrimental to the client. The Committee,
however, does not share the KBA’s concern about this rule as an impediment to education of the
bar because, as noted in Comment [7], lawyers can use hypotheticals to share their experience with
other lawyers. Nor does the Rule preclude a disclosure that will facilitate settlement or mediation
because such disclosures would be impliedly authorized to carry out the representation. The client
can also expressly authorize such disclosures. Nor does the Committee agree with the Victim’s
Rights Task Force criticism because the information about which they are concerned -- information
relating to the commission of crime -- would be harmful to the client and would therefore constitute
a “secret” under DR 4-101(A). In this regard, the Committee’s proposal does not change the law.
More importantly, the Committee would note that its proposal broadens the circumstances in which
a lawyer is permitted to disclose information relating to a client’s representation to prevent loss of
life or substantial bodily harm, to prevent the client from committing a crime, and to rectify or
mitigate the consequences of a crime or fraud in which the client used the lawyer’s services.
2. T. Maxfield Bahner of Chattanooga Bar has asked the Committee to follow the lead of
the ABA House of Delegates and the American College of Trial Lawyers and delete Paragraphs
(b)(2) and (b)(3). The effect of this proposal would be to prohibit lawyers, absent client consent,
from revealing information relating to the client’s representation, even when necessary to prevent
the client from committing a crime or to mitigate or rectify the consequences of a crime or fraud in
the commission of which the client had used the lawyer’s services. With due respect to the
American College of Trial Lawyers and the ABA House of Delegates, the Committee believes their
position on confidentiality is out of line with the prevailing sentiment in Tennessee and most other
jurisdictions about the circumstances in which lawyers should be permitted to take action to protect
others from the wrongful conduct of their clients. Paragraph (b)(2) is consistent with current law in
Tennessee, and Paragraph (b)(3) only permits disclosures when the client has grossly abused the
attorney-client relationship by using the lawyer’s services in furtherance of the client’s crime or
fraud.
3. Paragraph (b)(2) permits a lawyer to disclose information relating to the representation to
prevent commission of a crime, unless disclosure is prohibited or restricted by Rule 3.3. The Board
of Professional Responsibility and representatives of several victim’s rights groups have asked the
Court to drop the exception to the lawyer’s right to reveal a client’s intention to commit a crime.
The Committee urges the Court not to do so. The sole purpose for the cross-reference to Rule 3.3
in Paragraph (b)(3) is to clarify that Rule 3.3, rather than Rule 1.6(2), governs when the crime in
question relates to an adjudicative proceeding. Paragraphs (c) and (d) of Rule 3.3 do not allow
disclosure in cases in which the client intends or has committed a fraud against the court or an