It has been almost 5 years since I last wrote about The 5 Most Dangerous Rules of Professional Conduct. In 2013 I described the booby-trap that is Rule 1.18, a rule that converts “prospective clients,” who never engage you or pay a fee, into disqualifying conflict time-bombs. In 2015 I compiled An Informed Consent Concordance, a catalog of all the places in the rules where “informed consent” must be provided to a client, and where this must be documented “in a writing signed by the client” or merely “confirmed in writing.”
Today we jump all the way to #1 on our “Most Rule 1.6(a) – Confidentiality of Information. Dangerous” Hit Parade Countdown.
I previously posited this standard for ranking the “most dangerous” rules:
What qualifies a Rule as “dangerous?” In selecting my finalists I employed two criteria: the risk of inadvertent violation and the potential damage resulting therefrom.
I might add in the case of Rule 1.6 a third criteria: the frequency of opportunity for inadvertent violation.
Applying these standards, Casey Kasem, or his predecessor, Kenny Delmar (the announcer for the classic old time radio program Your Hit Parade), would have no trouble proclaiming Rule 1.6(a) numero uno. Rule 1.6 earns this lofty ranking for several reasons.
The Risk of Inadvertent Violation
First the scope of Rule 1.6 is misapprehended, especially by attorneys of a certain age – mine. Those of us who became licensed under the prior ABA Code of Professional Responsibility (“CPR”) recall DR 4-101 - Preservation of Confidences and Secrets of a Client. This rule divided verboten disclosures into two classes: “confidences” and “secrets.”
“Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other 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.
DR 4-101(A) (emphasis added). It was an easy rule to apply. If something was protected by the attorney-client privilege, a rule of evidence, you could not disclose it. If the client asked you not to reveal certain information you could not disclose it. If disclosure of client information would be embarrassing or “be likely to be detrimental to the client” you could not disclose it. Rule 4-101(A) simply codified common sense and good manners.
When the ABA adopted the Rule of Professional Conduct, DR 4-101 became Rule 1.6(a), and the transmogrification was a game-changer. Rule 1.6(a) is also easy to apply. No more identifying or distinguishing “confidences” from “secrets.” Instead, the Rule simply states:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
(Emphasis added.) Simple, huh? Well, apparently not so based on 37 years of experience.
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