Maryland Legal Ethics

1.6 Rule 1.6 Confidentiality of Information

1.6:100 Comparative Analysis of Maryland Rule

¥ Primary Maryland References: MD Rule 1.6
¥ Background References: ABA Model Rule 1.6, Other Jurisdictions
¥ Commentary:

1.6:101 Model Rule Comparison

Paragraph (a) is substantively identical to MR 1.6. Paragraph (b) contains a number of substantive and non-substantive changes. Unlike MR 1.6(b)(1), Maryland Rule 1.6(b)(1) allows a lawyer to disclose information that would prevent a client from committing not only a "criminal" act but also a "fraudulent" act. MR 1.6(b)(1) requires that the criminal act result in "imminent death"; Maryland only requires that the criminal or fraudulent act result in "death." Importantly, Maryland Rule 1.6(b)(1) also permits disclosure to prevent "substantial injury to the financial interest or property of another." MR 1.6(b) contains no such protection.

Maryland Rule 1.6(b)(2) does not appear in MR 1.6. It permits a lawyer to reveal information relating to representation "to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services were used . . . ."

Paragraph (b)(3) is nearly identical to MR 1.6(b)(2), except that Maryland also permits disclosure to defend against a "disciplinary complaint against the lawyer based upon conduct in which the client was involved . . . ." Maryland also adds paragraph (b)(4) (not included in MR 1.6), which permits disclosure of information relating to representation in order "to comply with these Rules, a court order or other law."

There are also a number of differences in the comment to Maryland Rule 1.6. In reference to paragraph (b)(1), the comment contains further reference to the lawyer's discretionary ability to make disclosures necessary to prevent substantial injury to the financial interest or property of another. There is an additional paragraph defining "information relating to representation." The comment also contains a discussion concerning when a lawyer has a legitimate interest in being able to, although not a duty to, rectify conduct in which the lawyer's professional services were unknowingly the instrument of a client's crime or fraud. This authority arises from paragraph (b)(2), which does not appear in MR 1.6 or the comment to MR 1.6. The comment also makes clear that paragraph (b)(2) "does not apply where a lawyer is employed after a crime or fraud has been committed to represent the client in a matter ensuing therefrom." Finally, the comment also adds the following:

If a lawyer knows that despite the withdrawal the client is continuing in conduct that is criminal or fraudulent, and is making use of the fact the lawyer was involved, the lawyer may have to take positive steps to avoid being held to have assisted the conduct. See Rules 1.2(d) and 4.1. In other situations not involving such assistance, the lawyer has discretion to make disclosure of otherwise confidential information only in accordance with MD Rule 1.6 and 1.13(c).

1.6:102 Model Code Comparison

Maryland Rule 1.6 expands the principle of confidentiality in the following respects: first, the confidentiality requirement applies to all information about a client "relating to the representation." By comparison, DR 4-101 applies only to information protected by the attorney-client privilege and the information has to be "gained in" the professional relationship that "the client has requested to be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client." Maryland Rule 1.6, on the other hand, imposes confidentiality on information relating to the representation even if it is acquired before or after the relationship existed, and regardless of whether the information is embarrassing or detrimental. Maryland Rule 1.6(a) also permits a lawyer to disclose information where impliedly authorized in order to carry out the representation; whereas under DR 4-101(B) and (C), a lawyer cannot reveal "confidences" unless the client first consents after disclosure.

Paragraph (b) redefines the exceptions to the requirement of confidentiality. Under the Model Code, DR 4-101(C)(3), a lawyer "may reveal the intention of his client to commit a crime and the information necessary to prevent the crime." This option existed regardless of the seriousness of the proposed crime.

Paragraph (b)(1) permits the lawyer to reveal information about a client to prevent the client from committing a crime or fraud that is likely to result in specified serious consequences. There is no Model Code counterpart to Maryland Rule 1.6(b)(2). With regard to paragraph (b)(3), DR 4-101(C)(4) provides that a lawyer may reveal "[c]onfidences or secrets necessary to establish or collect his fee or to defend himself or his employers or associates against an accusation of wrongful conduct"; whereas, Paragraph (b)(3) 1) enlarges the exception to include disclosure of information relating to claims by the lawyer other than for his fee, while 2) narrowing the exceptions dealing with defense against claims of wrongful conduct to situations where the client's conduct was involved. Maryland Rule 1.6(b)(4) has no counterpart in the Model Code.

1.6:200 Professional Duty of Confidentiality

¥ Primary Maryland References: MD Rule 1.6
¥ Background References: ABA Model Rule 1.6, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 55:101, ALI-LGL ¤¤ 111-117A, Wolfram ¤¤ 6.1, 6.7