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Duty of Confidentiality (MR 1.6)

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Duty of Confidentiality (MR 1.6)

Definition

Model Rule 1.6 requires a lawyer to maintain in confidence all information relating to the representation of a client. The duty is broader than the attorney-client privilege (an evidentiary rule): it covers all information from any source obtained during or relating to the representation, not just confidential communications. The duty persists after the representation ends.

Elements

Scope: Information relating to representation of a client, regardless of source (client, third party, public record, or lawyer’s own work).

Default rule: Lawyer shall not reveal such information without:

  • Client’s informed consent, OR
  • Implied authorization (disclosure reasonably necessary to carry out representation), OR
  • A recognized exception.

Exceptions permitting (or requiring) disclosure (MR 1.6(b)):

  1. To prevent reasonably certain death or substantial bodily harm (disclosure permitted; some states make it mandatory);
  2. To prevent client from committing a crime or fraud that is reasonably certain to result in substantial financial harm to another, where lawyer’s services are being used;
  3. To prevent, mitigate, or rectify substantial financial harm to another resulting from client’s crime or fraud using lawyer’s services;
  4. To secure legal advice about the lawyer’s compliance with the Rules;
  5. To defend against a claim brought by the client;
  6. To comply with a court order or other law.

Key Distinctions

  • Duty of confidentiality vs. attorney-client privilege: Privilege is an evidentiary rule protecting communications from compelled disclosure in legal proceedings; confidentiality is a broader ethical duty governing all information relating to representation. A communication can be subject to the duty of confidentiality without being privileged.
  • Duty survives termination: Unlike some aspects of the attorney-client relationship, the duty of confidentiality continues after representation ends.
  • Client controls waiver: Only the client (not the lawyer) can waive confidentiality by giving informed consent.

Policy / Rationale

  • Encourages full and frank communication between client and lawyer, enabling effective legal representation.
  • Clients must be able to trust that their lawyer will not reveal sensitive information.
  • The legal system depends on lawyers having full information from clients to provide effective advocacy.

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