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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


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

1.6:210      Definition of Protected Information

This section has not yet been completed.

1.6:220      Lawyer's Duty to Safeguard Confidential Client Information

This section has not yet been completed.

1.6:230      Lawyer Self-Dealing in Confidential Information [see also 1.8:300]

This section has not yet been completed.

1.6:240      Use or Disclosure of Confidential Information of Co-Clients

This section has not yet been completed.

1.6:250      Information Imparted in Lawyer Counseling Programs

This section has not yet been completed.

1.6:260      Information Learned Prior to Becoming a Lawyer

This section has not yet been completed.

1.6:300   Exceptions to Duty of Confidentiality--In General

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 6.4, 6.7

1.6:310      Disclosure to Advance Client Interests or with Client Consent

This section has not yet been completed.

1.6:320      Disclosure When Required by Law or Court Order

This section has not yet been completed.

1.6:330      Disclosure in Lawyer's Self-Defense

This section has not yet been completed.

1.6:340      Disclosure in Fee Dispute

This section has not yet been completed.

1.6:350      Disclosure to Prevent a Crime

This section has not yet been completed.

1.6:360      Disclosure to Prevent Death or Serious Bodily Injury

This section has not yet been completed.

1.6:370      Disclosure to Prevent Financial Loss

This section has not yet been completed.

1.6:380      Physical Evidence of Client Crime [see 3.4:210]

This section has not yet been completed.

1.6:390      Confidentiality and Conflict of Interest

This section has not yet been completed.

1.6:395      Relationship with Other Rules

This section has not yet been completed.

1.6:400   Attorney-Client Privilege

Primary Maryland References: MD Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 55:301, ALI-LGL 118-128, Wolfram 6.3-6.5

1.6:410      Privileged Communications

This section has not yet been completed.

1.6:420      Privileged Persons

This section has not yet been completed.

1.6:430      Communications "Made in Confidence"

This section has not yet been completed.

1.6:440      Communications from Lawyer to Client

This section has not yet been completed.

1.6:450      Client Identity, Whereabouts, and Fee Arrangements

This section has not yet been completed.

1.6:460      Legal Assistance as Object of Communication

This section has not yet been completed.

1.6:470      Privilege for Organizational Clients

This section has not yet been completed.

1.6:475      Privilege for Governmental Clients

This section has not yet been completed.

1.6:480      Privilege of Co-Clients

This section has not yet been completed.

1.6:490      Common-Interest Arrangements

This section has not yet been completed.

1.6:495      Duration of Attorney-Client Privilege

This section has not yet been completed.

1.6:500   Waiver of Attorney-Client Privilege

Primary Maryland References: MD Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 55:401, ALI-LGL 128-130, Wolfram 6.4

1.6:510      Waiver by Agreement, Disclaimer, or Failure to Object

This section has not yet been completed.

1.6:520      Waiver by Subsequent Disclosure

This section has not yet been completed.

1.6:530      Waiver by Putting Assistance or Communication in Issue

This section has not yet been completed.

1.6:600   Exceptions to Attorney-Client Privilege

Primary Maryland References: MD Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 55:901 et seq., ALI-LGL 131-135, Wolfram 6.4

1.6:610      Exception for Disputes Concerning Decedent's Disposition of Property

This section has not yet been completed.

1.6:620      Exception for Client Crime or Fraud

This section has not yet been completed.

1.6:630      Exception for Lawyer Self-Protection

This section has not yet been completed.

1.6:640      Exception for Fiduciary-Lawyer Communications

This section has not yet been completed.

1.6:650      Exception for Organizational Fiduciaries

This section has not yet been completed.

1.6:660      Invoking the Privilege and Its Exceptions

This section has not yet been completed.

1.6:700   Lawyer Work-Product Immunity

Primary Maryland References: MD Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 91:2201, ALI-LGL 136-142, Wolfram 6.6

1.6:710      Work-Product Immunity

This section has not yet been completed.

1.6:720      Ordinary Work Product

This section has not yet been completed.

1.6:730      Opinion Work Product

This section has not yet been completed.

1.6:740      Invoking Work-Product Immunity and Its Exceptions

This section has not yet been completed.

1.6:750      Waiver of Work-Product Immunity by Voluntary Acts

This section has not yet been completed.

1.6:760      Waiver of Work-Product Immunity by Use in Litigation

This section has not yet been completed.

1.6:770      Exception for Crime or Fraud

This section has not yet been completed.

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