Confidentiality and Its Exceptions: every key term you need (+ practice quiz)
25 flashcard terms for Professional Responsibility Topic 3, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
Model Rule 1.6 bars revealing information relating to the representation of a client, whatever its source, unless the client gives informed consent, disclosure is impliedly authorized, or an exception applies.
Information relating to the representation
The ethical duty is far broader than the evidentiary privilege and covers information from third parties, public records, and the lawyer's own observations, so long as it relates to the representation.
Attorney-client privilege
An evidentiary rule protecting confidential communications between lawyer and client made for the purpose of obtaining or delivering legal advice; it may be asserted to resist compelled testimony and belongs to the client.
Privilege compared with confidentiality
Privilege blocks compelled disclosure in a proceeding and is lost by waiver or the crime-fraud exception, while the ethical duty governs voluntary disclosure in every setting and has its own separate exceptions.
Work product doctrine
A litigation protection covering materials prepared in anticipation of litigation; ordinary work product yields to substantial need and undue hardship, while a lawyer's mental impressions receive near absolute protection.
Crime-fraud exception to privilege
The privilege does not attach to communications made to obtain assistance in committing an ongoing or future crime or fraud, though advice about past conduct remains privileged.
Impliedly authorized disclosure
A lawyer may reveal information when doing so is impliedly authorized to carry out the representation, such as disclosing a fact in negotiation or sharing the file with firm colleagues working on the matter.
Preventing reasonably certain death or bodily harm
Model Rule 1.6(b) permits, but does not require, revealing information the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm, whether or not any crime is involved.
Preventing client financial crime or fraud
Disclosure is permitted to prevent a client from committing a crime or fraud reasonably certain to cause substantial injury to another's financial interests or property in furtherance of which the client has used the lawyer's services.
Rectifying financial injury
A lawyer may also reveal information to prevent, mitigate, or rectify substantial financial injury already caused by a client crime or fraud in which the lawyer's services were used.
Self-defense exception
A lawyer may disclose what is reasonably necessary to establish a claim or defense in a controversy with the client, to defend against accusations arising from the representation, or to collect a fee.
Disclosure to secure legal advice
Model Rule 1.6(b) allows a lawyer to reveal information to obtain confidential legal advice about her own compliance with the rules, which supports consulting an ethics counsel or the firm's general counsel.
Disclosure required by law or court order
A lawyer may comply with other law or a final court order requiring disclosure, but should first consult the client and, where appropriate, assert applicable privileges and seek protective relief.
Detecting conflicts on lateral movement
Limited disclosure of client identity and matter scope is permitted to run conflicts checks when lawyers change firms or firms combine, so long as no privilege is compromised and the client is not prejudiced.
Duty to safeguard information
Model Rule 1.6(c) requires reasonable efforts to prevent inadvertent or unauthorized disclosure of client information, a standard evaluated by sensitivity, cost, and difficulty of safeguards rather than perfection.
Inadvertent disclosure and metadata
A lawyer who reasonably should know that a document was sent inadvertently must promptly notify the sender under Model Rule 4.4(b), and mining hidden metadata may violate that duty in many jurisdictions.
Confidentiality and public information
Facts already in the public record still fall within the ethical duty when they relate to the representation, so a lawyer may not repeat them freely in a way that embarrasses or harms the client.
Former client confidentiality
Model Rule 1.9(c) forbids using information relating to a former representation to that client's disadvantage and forbids revealing it, except as the rules would otherwise permit or when it has become generally known.
Generally known exception
Information that is widely recognized by the public or in the relevant industry may be used against a former client, but material buried in an obscure record is not generally known merely because it is technically accessible.
Confidentiality in public commentary
Blogging, social media posts, and responses to negative online reviews may not disclose client information; a lawyer answering criticism must limit any response and cannot rely on the self-defense exception for informal attacks.
Joint clients and confidentiality
Between commonly represented clients there is ordinarily no confidentiality, so the lawyer should explain at the outset that information material to the matter will be shared and that privilege does not apply if the joint clients later litigate.
Confidentiality of a deceased client
Both the privilege and the ethical duty survive the client's death, so the lawyer may not reveal a deceased client's secrets absent authority from the personal representative or an applicable exception.
Physical evidence of a crime
A lawyer may examine physical evidence but may not conceal, alter, or destroy it; where a lawyer takes possession, most authorities require turning it over to the prosecution or the court while resisting disclosure of the source where possible.
Confidentiality and Model Rule 3.3 override
The duty of candor to a tribunal trumps confidentiality, so a lawyer must take remedial measures for material false evidence even if that requires disclosing information otherwise protected by Model Rule 1.6.
Noisy withdrawal
When withdrawal is required because a client used the lawyer's services in fraud, the lawyer may give notice disaffirming an opinion, document, or affirmation, signaling the problem without disclosing protected details.