Current through Register Vol. 38, No. 18, March 15, 2024
(b) A lawyer may reveal information protected
from disclosure by paragraph (a) to the extent the lawyer reasonably believes
necessary:
(1) to comply with the Rules of
Professional Conduct, the law or court order;
(2) to prevent the commission of a crime by
the client;
(3) to prevent
reasonably certain death or bodily harm;
(4) to prevent, mitigate, or rectify the
consequences of a client's criminal or fraudulent act in the commission of
which the lawyer's services were used;
(5) to secure legal advice about the lawyer's
compliance with these Rules;
(6) to
establish a claim or defense on behalf of the lawyer in a controversy between
the lawyer and the client; to establish a defense to 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 concerning the lawyer's
representation of the client;
(7)
to comply with the rules of a lawyers' or judges' assistance program approved
by the North Carolina State Bar or the North Carolina Supreme Court;
or
(8) to detect and resolve
conflicts of interest arising from the lawyer's change of employment or from
changes in the composition or ownership of a firm, but only if the revealed
information would not compromise the attorney-client privilege or otherwise
prejudice the client.
(d) The duty of confidentiality described in
this Rule encompasses information received by a lawyer then acting as an agent
of a lawyers' or judges' assistance program approved by the North Carolina
State Bar or the North Carolina Supreme Court regarding another lawyer or judge
seeking assistance or to whom assistance is being offered. For the purposes of
this Rule, "client" refers to lawyers seeking assistance from lawyers' or
judges' assistance programs approved by the North Carolina State Bar or the
North Carolina Supreme Court.
Comment
[1] This Rule governs the disclosure by a
lawyer of information relating to the representation of a client acquired
during the lawyer's representation of the client. See Rule 1.18 for the
lawyer's duties with respect to information provided to the lawyer by a
prospective client, Rule 1.9(c)(2) for the lawyer's duty not to reveal
information acquired during a lawyer's prior representation of a former client,
and Rules 1.8(b) and 1.9(c)(1) for the lawyer's duties with respect to the use
of such information to the disadvantage of clients and former clients and Rule
8.6 for a lawyer's duty to disclose information to rectify a wrongful
conviction.
[2] A fundamental
principle in the client-lawyer relationship is that, in the absence of the
client's informed consent, the lawyer must not reveal information acquired
during the representation. See Rule 1.0(f) for the definition of informed
consent. This contributes to the trust that is the hallmark of the
client-lawyer relationship. The client is thereby encouraged to seek legal
assistance and to communicate fully and frankly with the lawyer even as to
embarrassing or legally damaging subject matter. The lawyer needs this
information to represent the client effectively and, if necessary, to advise
the client to refrain from wrongful conduct. Almost without exception, clients
come to lawyers in order to determine their rights and what is, in the complex
of laws and regulations, deemed to be legal and correct. Based upon experience,
lawyers know that almost all clients follow the advice given, and the law is
upheld.
[3] The principle of
client-lawyer confidentiality is given effect by related bodies of law: the
attorney-client privilege, the work product doctrine and the rule of
confidentiality established in professional ethics. The attorney-client
privilege and work-product doctrine apply 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
acquired during 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.
[4] Paragraph (a) prohibits a lawyer from
revealing information acquired during 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 a hypothetical 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.
Authorized Disclosure
[5] Except to the extent that the client's
instructions or special circumstances limit that authority, a lawyer is
impliedly authorized to make disclosures about a client when appropriate in
carrying out the representation. In some situations, for example, a lawyer may
be impliedly authorized to admit a fact that cannot properly be disputed or to
make a disclosure that facilitates a satisfactory conclusion to a matter.
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
[6] Although the public interest is usually
best served by a strict rule requiring lawyers to preserve the confidentiality
of information acquired during the representation of their clients, the
confidentiality rule is subject to limited exceptions. In becoming privy to
information about a client, a lawyer may foresee that the client intends to
commit a crime. Paragraph (b)(2) recognizes that a lawyer should be allowed to
make a disclosure to avoid sacrificing the interests of the potential victim in
favor of preserving the client's confidences when the client's purpose is
wrongful. Similarly, paragraph (b)(3) recognizes the overriding value of life
and physical integrity and permits disclosure reasonably necessary to prevent
reasonably certain death or substantial bodily harm. Such harm is reasonably
certain to occur if it will be suffered imminently or if there is a present and
substantial threat that a person will suffer such harm at a later date if the
lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer
who knows that a client has accidentally discharged toxic waste 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.
[7] A lawyer may have been innocently
involved in past conduct by a client that was criminal or fraudulent. Even if
the involvement was innocent, however, the fact remains that the lawyer's
professional services were made the instrument of the client's crime or fraud.
The lawyer, therefore, has a legitimate interest in being able to rectify the
consequences of such conduct, and has the professional right, although not a
professional duty, to rectify the situation. Exercising that right may require
revealing information acquired during the representation. Paragraph (b)(4)
gives the lawyer professional discretion to reveal such information to the
extent necessary to accomplish rectification.
[8] Although paragraph (b)(2) does not
require the lawyer to reveal the client's anticipated misconduct, the lawyer
may not counsel or assist the client in conduct 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.
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).
[9] Paragraph (b)(4) addresses the situation
in which the lawyer does not learn of the client's crime or fraud until after
it has been consummated. Although the client no longer has the option of
preventing disclosure by refraining from the wrongful conduct, there will be
situations in which the loss suffered by the affected person can be prevented,
rectified or mitigated. In such situations, the lawyer may disclose information
acquired during the representation to the extent necessary to enable the
affected persons to prevent or mitigate reasonably certain losses or to attempt
to recoup their losses. Paragraph (b)(4) does not apply when a person who has
committed a crime or fraud thereafter employs a lawyer for representation
concerning that offense.
[10] A
lawyer's confidentiality obligations do not preclude a lawyer from securing
confidential 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)(5) permits such disclosure because of the importance of a lawyer's
compliance with the Rules of Professional Conduct.
[11] 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, disciplinary or other 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)(6) 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 also
applies, of course, where a proceeding has been commenced.
[12] A lawyer entitled to a fee is permitted
by paragraph (b)(6) 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.
[13] Other law may
require that a lawyer disclose information about a client. Whether such a law
supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When
disclosure of information acquired during the representation appears to be
required by other law, the lawyer must discuss the matter with the client to
the extent required by Rule 1.4. If, however, the other law supersedes this
Rule and requires disclosure, paragraph (b)(1) permits the lawyer to make such
disclosures as are necessary to comply with the law.
[14] Paragraph (b)(1) also permits compliance
with a court order requiring a lawyer to disclose information relating to a
client's representation. 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, however, the lawyer must, absent informed consent
of the client to do otherwise, assert on behalf of the client all nonfrivolous
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 must consult with the client about the possibility of
appeal. See Rule 1.4. Unless review is sought, however, paragraph (b)(1)
permits the lawyer to comply with the court's order.
[15] Paragraph (b) permits disclosure only to
the extent the lawyer reasonably believes the disclosure is necessary to
accomplish one of the purposes specified. Where practicable, the lawyer should
first seek to persuade the client to take suitable action to obviate the need
for disclosure. In any case, a disclosure adverse to the client's interest
should be no greater than the lawyer reasonably believes necessary to
accomplish the purpose. If the disclosure will be made in connection with a
judicial proceeding, the disclosure should be made in a manner that limits
access to the information to the tribunal or other persons having a need to
know it and appropriate protective orders or other arrangements should be
sought by the lawyer to the fullest extent practicable.
[16] Paragraph (b) permits but does not
require the disclosure of information acquired during a client's representation
to accomplish the purposes specified in paragraphs (b)(1) through (b)(7). 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. When
practical, the lawyer should first seek to persuade the client to take suitable
action, making it unnecessary for the lawyer to make any disclosure. A lawyer's
decision not to disclose as permitted by paragraph (b) does not violate this
Rule. Disclosure may be required, however, by other Rules. Some Rules require
disclosure only if such disclosure would be permitted by paragraph (b). See
Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires
disclosure in some circumstances regardless of whether such disclosure is
permitted by this Rule. See Rule 3.3(c).
Detection of Conflicts of Interest
[17] Paragraph (b)(8) recognizes that lawyers
in different firms may need to disclose limited information to each other to
detect and resolve conflicts of interest, such as when a lawyer is considering
an association with another firm, two or more firms are considering a merger,
or a lawyer is considering the purchase of a law practice. See Rule 1.17,
Comment [8]. Under these circumstances, lawyers and law firms are permitted to
disclose limited information, but only once substantive discussions regarding
the new relationship have occurred. Any such disclosure should ordinarily
include no more than the identity of the persons and entities involved in a
matter, a brief summary of the general issues involved, and information about
whether the matter has terminated. Even this limited information, however,
should be disclosed only to the extent reasonably necessary to detect and
resolve conflicts of interest that might arise from the possible new
relationship. Moreover, the disclosure of any information is prohibited if it
would compromise the attorney-client privilege or otherwise prejudice the
client (e.g., the fact that a corporate client is seeking advice on a corporate
takeover that has not been publicly announced; that a person has consulted a
lawyer about the possibility of divorce before the person's intentions are
known to the person's spouse; or that a person has consulted a lawyer about a
criminal investigation that has not led to a public charge). Under those
circumstances, paragraph (a) prohibits disclosure unless the client or former
client gives informed consent. A lawyer's fiduciary duty to the lawyer's firm
may also govern a lawyer's conduct when exploring an association with another
firm and is beyond the scope of these Rules.
[18] Any information disclosed pursuant to
paragraph (b)(8) may be used or further disclosed only to the extent necessary
to detect and resolve conflicts of interest. Paragraph (b)(8) does not restrict
the use of information acquired by means independent of any disclosure pursuant
to paragraph (b)(8). Paragraph (b)(8) also does not affect the disclosure of
information within a law firm when the disclosure is otherwise authorized, such
as when a lawyer in a firm discloses information to another lawyer in the same
firm to detect and resolve conflicts of interest that could arise in connection
with undertaking a new representation. See Comment [5].
Acting Competently to Preserve Confidentiality
[19] Paragraph (c) requires a
lawyer to act competently to safeguard information acquired during the
representation of a client against unauthorized access by third parties and
against inadvertent or unauthorized disclosure by the lawyer or 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. The unauthorized access
to, or the inadvertent or unauthorized disclosure of, information acquired
during the professional relationship with a client does not constitute a
violation of paragraph (c) if the lawyer has made reasonable efforts to prevent
the access or disclosure. Factors to be considered in determining the
reasonableness of the lawyer's efforts include, but are not limited to, the
sensitivity of the information, the likelihood of disclosure if additional
safeguards are not employed, the cost of employing additional safeguards, the
difficulty of implementing the safeguards, and the extent to which the
safeguards adversely affect the lawyer's ability to represent clients (e.g., by
making a device or important piece of software excessively difficult to use). A
client may require the lawyer to implement special security measures not
required by this Rule, or may give informed consent to forgo security measures
that would otherwise be required by this Rule. Whether a lawyer may be required
to take additional steps to safeguard a client's information to comply with
other law-such as state and federal laws that govern data privacy, or that
impose notification requirements upon the loss of, or unauthorized access to,
electronic information-is beyond the scope of these Rules. For a lawyer's
duties when sharing information with nonlawyers outside the lawyer's own firm,
see Rule 5.3, Comments [3]-[4].
[20] When transmitting a communication that
includes information acquired during 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 use 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 client's expectation of confidentiality include the
sensitivity of the information and the extent to which the privacy of the
communication 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. Whether a lawyer may be
required to take additional steps to comply with other law, such as state and
federal laws that govern data privacy, is beyond the scope of these Rules.
Former Client
[21] The duty of confidentiality continues
after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See
Rule 1.9(c)(1) for the prohibition against using such information to the
disadvantage of the former client.
Lawyer's Assistance Program
[22] Information about a lawyer's or judge's
misconduct or fitness may be received by a lawyer in the course of that
lawyer's participation in an approved lawyers' or judges' assistance program.
In that circumstance, providing for the confidentiality of such information
encourages lawyers and judges to seek help through such programs. Conversely,
without such confidentiality, lawyers and judges may hesitate to seek
assistance, which may then result in harm to their professional careers and
injury to their clients and the public. The rule, therefore, requires that any
information received by a lawyer on behalf of an approved lawyers' or judges'
assistance program be regarded as confidential and protected from disclosure to
the same extent as information received by a lawyer in any conventional
client-lawyer relationship.