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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Minnesota Rules of Professional Conduct

COMMENTS

Comment - Rule 1.6

General

Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the lawyer to preserve confidences and secrets of one who has employed or sought to employ the lawyer. A client must feel free to discuss whatever the client wishes with the lawyer and a lawyer must be equally free to obtain information beyond what the client volunteers. A lawyer should be fully informed of all the facts of the matter the lawyer is handling in order for the client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of independent professional judgment to separate the relevant and important from the irrelevant and unimportant.

Observance of the lawyer’s ethical obligation to hold inviolate the client’s confidences and secrets not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance.

Authorized Disclosure

The obligation to protect confidences and secrets obviously does not preclude a lawyer from revealing information when the client consents after consultation, when necessary to perform professional employment, when permitted by the Rules of Professional Conduct or when required by law.

The confidentiality required under this rule should not allow a client to utilize the lawyer’s services in committing a criminal or fraudulent act. A lawyer is permitted to reveal the intention of a client to commit a crime and the information necessary to prevent the crime. In addition, where the lawyer finds out, after the fact, that the lawyer’s services were used by the client to commit a criminal or fraudulent act, the lawyer has discretion to reveal information necessary to rectify the consequences of the client’s crime or fraud. A lawyer is not permitted, however, to disclose a client’s criminal or fraudulent act committed prior to the client’s retention of the lawyer’s services.

Unless the client otherwise directs, a lawyer may disclose the client’s affairs to partners or associates.

It is a matter of common knowledge that the normal operation of a law office exposes confidential professional information to non-lawyer employees of the office, particularly secretaries and those having access to the files; and this obligates a lawyer to exercise care in selecting and training employees so that the sanctity of all confidences and secrets of clients may be preserved.

If the obligation extends to two or more clients as to the same information, a lawyer should obtain the permission of all before revealing the information.

A lawyer must always be sensitive to the client’s rights and wishes and act scrupulously in making decisions which may involve disclosure of information obtained in the professional relationship. Thus, in the absence of the client’s consent after consultation, a lawyer should not associate another lawyer in handling a matter; nor, in the absence of consent, seek counsel from another lawyer if there is a reasonable possibility that the client’s identity or confidences or secrets would be revealed to that lawyer. Both social amenities and professional duty should cause a lawyer to shun indiscreet conversations concerning clients.

Unless the client otherwise directs, it is not improper for a lawyer to give limited information from the lawyer’s files to an outside agency necessary for statistical, bookkeeping, accounting, data processing, banking, printing, or other legitimate purposes, provided the lawyer exercises due care in selecting the agency and warns the agency that the information must be kept confidential.

Protecting Confidences

The attorney-client privilege is more limited than the lawyer’s ethical obligation to guard the client’s confidences and secrets. The ethical obligation, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge.

A lawyer should endeavor to act in a manner which preserves the evidentiary privilege; for example, the lawyer should avoid professional discussions in the presence of persons to whom the privilege does not extend. A lawyer owes an obligation to advise the client of the attorney-client privilege and timely to assert the privilege unless it is waived by the client.

Using Confidences or Secrets

A lawyer should not use information acquired in the course of the representation of a client to the client’s disadvantage and a lawyer should not use, except with the client’s consent after full disclosure, such information for the lawyer’s own purposes.

Likewise, a lawyer should be diligent in efforts to prevent misuse of such information by employees and associates.

A lawyer should exercise care to prevent disclosure of confidences and secrets of one client to another and should accept no employment that might require such disclosure.

Former Client

The lawyer’s obligation to preserve the client’s confidences and secrets continues after termination of the employment. Thus, a lawyer should not attempt to sell a law practice as a going business because, among other reasons, to do so would involve disclosure of confidences and secrets.

A lawyer should also provide for the protection of the client’s confidences and secrets following the termination of the practice of the lawyer, whether termination is due to death, disability or retirement. For example, a lawyer might provide for the client’s personal papers to be returned to the client and for the lawyer’s papers to be delivered to another lawyer or to be destroyed. In determining the method of disposition, the client’ instructions and wishes should be a dominant consideration.

Reporting Obligation

In the course of representation a lawyer may acquire knowledge of another lawyer’s violations of the Rules of Professional Conduct. In that instance, a lawyer’s obligation to protect client confidences and secrets under Rule 1.6 may appear to conflict with that lawyer’s obligations under Rule 8.3 to report professional misconduct by another lawyer. Where “confidences” are involved, the importance of the fiduciary relationship between lawyer and client and the proper functioning of the legal system require that the client retain the veto power over the lawyer’s ability to divulge knowledge of another lawyer’s violations of the Rules of Professional Conduct.

Until the Rules of Professional Conduct superseded the Code of Professional Responsibility in 1985, Minnesota lawyers were required to report professional misconduct only if their knowledge of the misconduct was “unprivileged.” Until 1985, if a lawyer’s knowledge of misconduct was a “secret,” reporting was required; if the knowledge acquired involved a “confidence,” reporting was not allowed, unless some other exception to the confidentiality rule applied. Since September 1, 1985, reporting of misconduct has been forbidden without client consent, if either a confidence or secret is involved.

Under subsection 1.6(b)(6), a lawyer now has the discretion to reveal “secrets,” but not client confidences, when necessary to report the lawyer’s knowledge of another lawyer’s misconduct. This subsection incorporates the language of Rule 8.3 as to the type of reportable misconduct, requiring that the misconduct “raise a substantial question” about the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.

This discretion to report a lawyer’s misconduct balances the policy of confidentiality with the legal profession’s obligation to enforce high ethical standards. If the client consents to the lawyer reporting another lawyer’s misconduct, no conflict exists between these two policies. Therefore, the lawyer with knowledge of another lawyer’s misconduct should seek the client’s permission to report the misconduct to the disciplinary authority.

When the client opposes such disclosure, the lawyer then must determine whether knowledge of the misconduct stemmed from a client confidence. If so, the confidentiality rule prevails: disclosure is prohibited. If the knowledge stemmed from a secret, however, the lawyer faces the discretionary decision whether to report the misconduct. Factors pertinent to the discretionary decision include the nature of the lawyer’s misconduct, the likelihood that such misconduct will recur if not reported, the possible emotional harm to the client if required to testify in a disciplinary proceeding and/or the likelihood of recovery of embezzled funds.

Other factors that may merit consideration would be the ability to recover funds, such as through frozen assets or a client security fund, in which case, the client’s preference might be given less weight.