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Ohio Legal Ethics Narrative
I. Client-lawyer relationship
Ohio Rule 1.6(a) differs from the Model Rule in the following respects: After "a client," the words "including information protected by the attorney-client privilege under applicable law," have been added. After "division (b)" the following has been added: "or required by division (c) of this rule."
Ohio Rule 1.6(b) differs from the Model Rule in the following respects: After "a client," the words "including information protected by the attorney-client privilege under applicable law," have been added. After "necessary", the words "for any of the following purposes" have been added.
Subdivision (b)(2) changes the Model Rule language "to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;" to "to prevent the commission of a crime by the client or other person;".
Subdivision(b)(3) is similar to MR 1.6(b)(3) with the following changes: rather than "to prevent, mitigate or rectify substantial injury", subdivision (b)(3) is limited to "to mitigate substantial injury". The subdivision also deletes "is reasonably certain to result or" after "property of another that". Lastly, the words "an illegal or fraudulent act," have been substituted for "a crime or fraud".
Subdivision (b)(5) is identical to MR 1.6(b)(5), except that ", including any disciplinary matter," has been added after the words "any proceeding".
(Subdivisions (b)(1), (4), and (6) are identical to MR 1.6(b)(1), (4), and (6).)
The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.6(a): DR 4-101(A), (B) & (C)(1).
The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.6(b)(1): None.
The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.6(b)(2): DR 4-101(C)(3).
The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.6(b)(3): DR 7-102(B)(1).
The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.6(b)(4): None.
The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.6(b)(5): DR 4-101(C)(4).
The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.6(b)(6): DR 4-101(C)(2).
The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.6(c): None.
- Primary Ohio References: Ohio Rule 1.6
- Background References: ABA Model Rule 1.6
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.46, 4.3, 4.10-4.14, 4.21-4.26; Giannelli & Snyder, Baldwin's Ohio Practice, Evidence §§ 501.6-501.7, 501.14
- Commentary: ABA/BNA § 55:101; ALI-LGL §§ 59-66; Wolfram §§ 6.1, 6.7
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 4.10-4.12 (1996).
Under previous Ohio law, lawyers were obligated to protect as confidential confidences ("information protected by the attorney-client privilege under applicable law") and secrets ("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"). Former OH DR 4-101(A). Ohio Rule 1.6(a) protects from unauthorized disclosure "information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law." The Task Force indicates in its Ohio Code Comparison to Rule 1.6 that this language "generally corresponds" to the "confidences and secrets" language of OH DR 4-101(A), but that does not necessarily mean they are meant to be coextensive. Indeed, the Task Force itself seemed to recognize otherwise in its Report of the Supreme Court of Ohio Task Force on Rules of Professional Conduct ("Report") at 7, which states that the formulation under the Rule protects "all" information regarding the representation, "including" confidences and secrets under the Code. This second formulation is more in line with the Rule itself, which on its face is broader than its OHCPR counterpart. Accord Bd. of Comm'rs on Grievances & Discipline Op. 2007-1, 2007 Ohio Griev. Discip. 1, at *15 (Feb. 9, 2007) (1.6 protects against "disclosure of any information relating to the representation" not otherwise authorized). See also Deborah A. Coleman, New Ohio Ethics Rules, Cleve. B.J., Oct. 2006, at 8, 9 (stating that such matters as the fact of representation and client identity would be protected information under 1.6.
While the category of "secrets" under former 4-101(A) included only "information gained in the professional relationship," Ohio Rule 1.6 contains no such limitation. Information learned outside the professional relationship is now covered as long as it "relates" to the representation.
Also, the term "secrets" was limited to information that the client requested to be kept as such or where release of the information would likely be embarrassing or detrimental to the client. The Ohio Rule, in contrast, starts with a blanket protection for "information relating to the representation" and then lists a limited set of exceptions. It appears to be based on an assumption that the client wants all information to be kept confidential unless it falls under one of the exceptions. For example, information relating to the representation, the release of which would not be harmful to the client and about which the client has been silent, will still need to be kept confidential unless an explicit exception applies.
As stated, the protection provided by Rule 1.6 "applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source." Rule 1.6 cmt. . The Rule also explicitly incorporates in its coverage material protected by the attorney-client privilege, which in Ohio includes both a common-law privilege and a statutory privilege. See 1 Paul C. Giannelli & Barbara Rook Snyder, Baldwin's Ohio Practice, Evidence § § 501.6-501.7 (2d ed. 2001 & Supp. 2007). This inclusion in Rule 1.6(a), together with its repetition in the disclosure provisions of Rules 1.6(b) and (c), makes it clear that where the Rule authorizes disclosure, that authorization trumps both the ethical duty of confidentiality and the attorney-client privilege, except in circumstances – involving compelled attorney testimony about attorney-client communications -- to which the evidentiary privilege set forth in ORC 2317.02(A) is applicable and controlling. Established Supreme Court precedent holds that the only exceptions to this statutory privilege are those expressly set forth in 2317.02(A). See sections 1.6:400, 1.6:520 & :530.
Information relating to the representation - What is "information"?: Both the former OHCPR and the Ohio Rules protect certain classes of "information." Unfortunately, neither defines the term. In practice, under the Code the term was interpreted broadly, and, given the general expansion of confidentiality protection under Ohio Rule 1.6, that is likely to continue.
Ohio State Bar Ass'n Informal Op. 77-13 (Sept. 2, 1977) well illustrates this broad reading under the Code. In advising a lawyer, who had represented a minor driver in juvenile court regarding a traffic offense, not to represent the passengers of the car in an action against the driver for personal injuries arising from the incident, the bar association stressed the breadth of information that might be misused if such representation were undertaken:
If you undertook representation of the [passengers] of your former client in an action against her for damages, you would of necessity use information obtained from your former client in asserting the personal injury claim of [the passengers], although the information might not necessarily be facts, but rather inferences to be deduced by you from the information furnished during your representation of [the driver] ... including intangible inferences having to do with the feelings and attitudes of the [driver] growing out of the accident and the juvenile court traffic offense, upon which to base probabilities of recovery.
Id. at 2-3.
It was unclear whether all physical evidence was to be treated as "information" under the former rule, but physical evidence that contained a distinct informational component was covered. See In re Original Grand Jury Investigation, 89 Ohio St.3d 544, 733 N.E.2d 1135 (2000) (letter by defendant to defendant's brother concerning plan to threaten a witness contained information detrimental to client and thus was client "secret" within the meaning of OH DR 4-101(A)). However, knowledge that a judgment entry contains a clerical error favorable to the client was not. Bd. of Comm'rs on Grievances & Discipline Op. 99-8, 1999 Ohio Griev. Discip. LEXIS 9 (Dec. 2, 1999).
Information relating to the representation - Confidences and secrets: Since Ohio Rule 1.6 is intended to encompass information formerly classified as confidences and secrets, there is every reason to believe that the case law discussing matters classified as confidences and secrets under the previous disciplinary rule still provides good guidance. In contrast, however, since the definition of protected information has expanded, some cases declining to treat information as confidences or secrets may no longer apply.
For a discussion of information protected by both Rule 1.6 and the attorney-client privilege (formerly "confidences") see sections 1.6:400-:600.
The term "secrets" encompassed a broader class of communications than those protected by the attorney-client privilege; it included any "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." OH DR 4-101(A).
An informative case on the scope of the term "secrets" under the Code is Akron Bar Ass'n v. Holder, 102 Ohio St.3d 307, 2004 Ohio 2835, 810 N.E.2d 426. The respondent in Holder disputed that "secrets" of his client (Wright) had been disclosed, inasmuch as the information disclosed, Wright's criminal record (and other negative information), was a matter of public record and Wright himself had revealed the information to others, including in deposition testimony. The Court was not persuaded:
A client secret necessarily includes embarrassing or detrimental information that the client reveals [to the lawyer], but the term also extends to embarrassing or detrimental information that is available from other sources, such as witnesses or investigative research. . . .
There being an ethical duty to maintain client secrets available from sources other than the client, it follows that an attorney is not free to disclose embarrassing or harmful features of a client's life because they are documented in public records or the attorney learned of them in some other way.
Holder, at ¶¶ 38, 39.
Findlay/Hancock County Bar Ass'n v. Filkins, 90 Ohio St.3d 1, 734 N.E.2d 764 (2000), is an interesting disciplinary case dealing in part with whether the respondent had violated former OH DR 4-101(B)(2) by misusing client confidences to the disadvantage of the client. The alleged "confidences" were found by the Court not to be confidences as that term was used in OH DR 4-101(B)(2):
the "confidences" [the client] identifies in her testimony are merely generic statements of her love for her children, which could apply to virtually any parent. Further, the fact that a client cherishes his or her child is hardly the sort of information that can be used in a custody case to the disadvantage of the client. Therefore, we decline to define the broad statements identified by [the client] as "confidences" for purposes of DR 4-101(B)(2).
Id. at 11, 734 N.E.2d at 772. Nor could an argument plausibly have been made that such information was a client "secret" under the former rule. Parental love is not typically something a client would have his or her lawyer hold "inviolate"; disclosure of such love could not be considered "embarrassing" or "detrimental" to the client.
Query, however, whether the information at issue in Filkins might not be within the protection of Rule 1.6. If it "relat[ed] to the representation," it would be, subject to any of the enumerated exceptions, of which none would appear to be applicable. If protected, Rule 1.8(b) precludes a lawyer from using such information to the client's disadvantage, absent the client's consent. See section 1.8:300.
While the Task Force in its Ohio Code Comparison to Rule 1.6 states that Rule 1.6(a) "generally corresponds to DR 4-101(A) by protecting the confidences and secrets of a client under the rubric of 'information relating to the representation,'" it seems reasonably clear that there is no longer an "embarrassing" or "detrimental" requirement under Rule 1.6. As a result, the distinctions drawn in such "secret" cases as Akron Bar Ass'n v. Holder, 102 Ohio St.3d 307, 2004 Ohio 2835, 810 N.E.2d 426 (even though public information, client's criminal record was detrimental and/or embarrassing to client and therefore qualified as "secret") and State ex rel. Beacon Journal Publ'g Co. v. Bodiker, 134 Ohio App.3d 415, 731 N.E.2d 245 (Franklin 1999) (information as to time and public money spent by Ohio Public Defender on case involving well-known criminal defendant not a "secret" under former OH DR 4-101(A), since client had not requested that information be kept inviolate and its release would not result in embarrassment or detriment to client) no longer exist.
Information relating to the representation - Generally-known information: As is stated in ABA, Annotated Model Rules of Professional Conduct 97 (6th ed. 2007) (commentary), with respect to the "relating to the representation" language of MR 1.6(a) (identical to Ohio Rule 1.6(a)),
Rule 1.6 contains no exception permitting disclosure of information previously disclosed or publicly available.
(citing public record cases). Under this reading, Holder, despite the irrelevance under the Rule of the detrimental/embarrassing assessment there found controlling, would nevertheless come out the same way under Rule 1.6 because the public nature of the information would not take it out of the protected category of information relating to the representation. (Compare Ohio Rule 1.9(c)(1), prohibiting use of information relating to the representation to the disadvantage of a former client except where, inter alia, the information is generally known.)
Although the Restatement excludes "information that is generally known" from its definition of confidential information, see 1 Restatement (Third) of the Law Governing Lawyers § 59 (2000) (§ 59 cmt. d makes clear that "generally known" includes material publicly accessible, such as public records), and although Hazard and Hodes argue that "it would be sensible to read in such a limitation" in the Model Rules, they concede that "[t]here is no exception (in the Model Rules) for use or disclosure of such [publicly known] information in the case of current clients." 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 9.5, at 9-18 (3d ed. Supp. 2005-2) (emphasis in original; bracketed material added).
Information relating to the representation – Timing or context of acquisition of such information: The Ohio Rule 1.6(a) protection attaches to information "relating to the representation of a client," not just information "gained in the professional relationship," as was the case under the former disciplinary rule. As a result, information acquired other than in the professional relationship is protected under the new Rule, if related to the representation. Ohio Rule 1.6 cmt. :
The confidentiality rule . . . applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.
An interesting pre-Rule case raising issues as to the context of the lawyer's acquisition of information allegedly relating to the representation is In re Grand Jury Subpoenas Issued to Lynd, 2005 Ohio 4607, 2005 Ohio App. LEXIS 4170 (Scioto). In Lynd, the lawyer refused to testify before a grand jury regarding conversations she had had with one Girdy, a prison inmate, dealing with the Lucasville prison riot in 1993. While it appears that Lynd may have had an attorney-client relationship with Girdy as to certain matters (such as enforcement of his plea agreement, the right to refuse a polygraph test, transfer to another institution, and, in a later interview, prison conditions), it is clear that Lynd was also seeking (and obtained) information from Girdy in an effort to obtain post-conviction relief for another of her clients, Skatzes, in connection with events occurring during the riot. This latter information was the focus of the grand jury inquiry. The court's analysis in affirming the contempt order against Lynd for refusing to testify on attorney-client privilege grounds was as follows, in language that bears on the "information relating to the representation" test:
Assuming that Lynd was representing Girdy on some matters, Lynd failed to prove that the statements she seeks to protect are connected with the matter for which she had been retained [by Girdy] . . . . None of these requests [enforcement of plea agreement, etc.] and none of the services Lynd provided had anything to do with Girdy's culpability for uncharged misconduct during the riot.
. . . The latter inquiry [about prison conditions] was not related to her professional relationship with Girdy but rather was designed to benefit Skatzes. No putative client could reasonably believe that statements Girdy made in the latter context [potentially helpful to Skatzes] would be used to advance his [Girdy's] interest in any of the matters upon which Lynd was representing him.
Id. at ¶¶ 17-18 (bracketed material added). Given the court's findings of failure to prove that the information was "connected with the matter for which she had been retained," that none of her services for Girdy "had anything to do" with the information at issue, and that her inquiry about information helpful to Skatzes "was not related to her professional relationship with Girdy," it could be argued with some persuasiveness that, even under the broader Rule 1.6 formulation, it was not "information relating to the representation" of Girdy, but rather to the representation of her other client, Skatzes.
While neither Ohio Rule 1.6 or MR 1.6 speak directly to the issue of timing of the acquisition of the information, 1 Restatement (Third) of the Law Governing Lawyers § 59 cmt. c (2000) does so:
Information acquired during the representation or before or after the representation is confidential so long as it . . . relates to the representation.
See also 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 9.15, at 9-59 (3d ed. Supp. 2005-2) (emphasis in original) ("all information 'relating to' a lawyer's professional relationship with a client is presumptively confidential").
This means that opinions such as Cleveland Bar Ass'n Op. 84 (Apr. 27, 1973) (information obtained about former corporate client while serving in nonlegal capacity for corporation could be used without violating former OH DR 4-101(B)) are no longer good law under the Rules. Another bar opinion decided under the Code is more problematical. Cleveland Bar Ass'n Op. 80 (n.d.) opined that lawyer A, who shared office space with lawyer B, was bound by Canon 4 with respect to confidences of B's clients shared with him by B. Query whether A had any such obligation under the Code to a nonclient. Under Rule 1.6, the information would be protected if B's client later became a client of A and the earlier-acquired information related to A's representation of the client.
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 4.3, 4.10, 4.13-4.14 (1996).
Duty to protect client information - The underlying rationale: Under Ohio Rules 1.6(a) and 1.8(b), a lawyer is prohibited from revealing (1.6(a)) or misusing (1.8(b)) "information relating to the representation of a client." This duty flows in part from the fiduciary relationship between a lawyer and a client and in part from the needs of the legal system. Client trust is an essential element of the lawyer-client relationship. Such trust is fostered when the client knows that any information obtained by the attorney relating to the representation will be kept confidential. More broadly, however, the preservation of client confidentiality is essential to the operation of the legal system itself. The promise of confidentiality is necessary to encourage lawyers to seek, and clients to share, information fully. Only through the full and free sharing of information can the lawyer accurately assess how best to counsel the client in an attempt to lawfully accomplish the client's goals.
Duty to protect client information - The scope of the duty: Confidentiality is at the heart of the client-lawyer relationship. To ensure that it is maintained, the Rule extends beyond a general prohibition against revealing information relating to client representation. It "also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of protected information by a third person." Ohio Rule 1.6 cmt. . Similarly, even where the lawyer is permitted to reveal information relating to the representation of a client (see section 1.6:300), the lawyer may do so only to the extent the lawyer "reasonably believes . . . necessary" to meet the provisions of the exception. Ohio Rule 1.6(b). See Rule 1.6 cmt. .
While the duty to protect client information lies in the first instance as a check on lawyer disclosure, the lawyer must also act to assure that those under the lawyer's supervision protect confidential client information as well. Ohio Rule 1.6 cmt. . See section 5.3:200.
Because of the duty to preserve client information, lawyers should attempt to avoid acting in ways that trigger disclosure required by law. For example, if a lawyer provides financial services to clients through his law firm, the information would be subject to state inspection unless the services are "solely incidental" to the practice of law. The Board of Commissioners indicated that for the law firm to offer financial services more broadly would be improper because of this confidentiality concern. Bd. of Comm'rs on Grievances & Discipline Op. 2000-4, 2000 Ohio Griev. Discip. LEXIS 4 (Dec. 1, 2000) (using this as an example of a more generalized concern over lawyer provision of law-related services that might expose client files to regulatory inspection).
Duty to protect client information - Duty owed only to client: It is important to recognize that the duty here extends only to a client. Under the former OHCPR, for example, if a lawyer, through no wrongdoing, obtained in a public records search confidential information about a third party contained in an inadvertently disclosed document, the lawyer had "no express or implied duty to protect an opposing party's confidences and secrets." Bd. of Comm'rs on Grievances & Discipline Op. 93-11, 1993 Ohio Griev. Discip. LEXIS 1, at *3 (Dec. 3, 1993). The lawyer could read the document and reveal its contents to the client, but had to notify the source of the document and return a copy of it if so requested. Id. The inadvertently-disclosed-document scenario is now controlled by Ohio Rule 4.4(b) & cmt.  (which comment preserves the position taken in Opinion 93-11 on the facts there presented), discussed at section 4.4:300.
At times, ambiguity may arise concerning who is the client of the lawyer. In a shareholder derivative action, for example, brought by party A (a former outside counsel for the corporation and a present corporate director) who was represented by lawyer B (also a former outside counsel for the corporation), the assumed use of corporate information for the benefit of the shareholders was approved by the Cleveland Bar Association as consistent with former OH EC 4-5 because a shareholder derivative suit is ultimately for the corporation's benefit and therefore the information was not being used by A "to the disadvantage of his [former] client" or "for his own purposes," contrary to the admonition of the ethical consideration. Cleveland Bar Ass'n Op. 84, at 3-4 (Apr. 27, 1973). However, since B had also formerly represented members of the board of directors who were defendants in the present action, he could not represent plaintiff against the board members without breaching or appearing to breach OH DR 4-101(B). Compare the different (and perhaps more realistic) approach taken, with respect to who the "client" is in a shareholder derivative action, in In re Dayco Corp. Derivative Securities Litigation, 102 F.R.D. 624, 630 (S.D. Ohio 1984) (no adversity for conflict-of-interest purposes where plaintiff's counsel in derivative action had formerly represented party in suit against corporation; client in reality is adverse to the corporation and its management). As the Dayco court further noted, quoting from In re International Systems & Controls Corp. Securities Litigation, 693 F.2d 1235, 1239 (5th Cir. 1982), "in derivative litigation, '[i]t is not reasonable to indulge in the fiction that counsel, hired by [corporate] management, is also constructively hired by the same party [i.e., the derivative named plaintiff] counsel is expected to defend against.'" 102 F.R.D. at 630-31 n.7. Dayco is further discussed at section 1.9:220. Both Dayco and the Cleveland Bar opinion are also discussed at section 1.13:510.
Duty to protect client information - Time period during which the duty applies: The protection for information relating to the representation attaches when a person consults a lawyer regarding legal representation, regardless of whether the lawyer is ultimately retained by the client. Ohio Rule 1.18(b). This parallels the treatment given preliminary communications under the evidentiary doctrine of attorney-client privilege. Taylor v. Sheldon, 172 Ohio St. 118, 173 N.E.2d 892 (1961) (attorney-client privilege extends to preliminary communications made with respect to retaining attorney); Bd. of Comm'rs on Grievances & Discipline Op. 91-15, 1991 Ohio Griev. Discip. LEXIS 14 (June 14, 1991). See ORC 2317.021 (defining client for attorney-client privilege purposes as one who "consults an attorney for the purpose of retaining the attorney or securing legal service or advice from him in his professional capacity and who communicates with such attorney"). With this in mind, a lawyer must be careful in undertaking the initial interview of a prospective client since, even if the representation is ultimately declined, duties of confidentiality with respect to the information obtained may limit the lawyer's ability to represent others concerning matters discussed in the initial interview. Ohio State Bar Ass'n Informal Op. 87-1 (June 22, 1987) (in screening and referring case to private attorney, Legal Aid Society obtained confidential information about client and thus could not represent opposing party without violating initial client confidences obtained); Cleveland Bar Ass'n Op. 101 (Sept. 11, 1973) (confidences and secrets disclosed between prospective client and attorney, in relatively brief initial interview that did not culminate in employment, were protected by OH DR 4-101(B)). Limiting the nature of the information obtained in the initial interview and securing a waiver of confidentiality and conflicts concerns arising from the initial consultation usually are advised as a way to minimize this problem. Unfortunately, Ohio has chosen to delete MR 1.18 cmt. , which provided for such a waiver, in Ohio Rule 1.18. See discussion at section 1.18:200.
The protection for client confidences and secrets remains after any ongoing representation has terminated. Kala v. Aluminum Smelting & Ref. Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998). Even the client's death does not extinguish the duty. See, e.g., Cincinnati Bar Ass'n Op. 90-91-04 (n.d.) (lawyer could not, under former OHCPR, turn over to historical society old files of deceased clients, even though the files might have historical significance). The fear of a breach of this continuing duty may contribute, at times, to a lawyer's disqualification when the lawyer seeks to represent a party with interests adverse to a former client, and the former and current representations involve the same or substantially related matters. See sections 1.9:200 and 1.9:400.
The duty survives the termination of the lawyer's practice, whether by death, illness, or retirement. See, e.g., Ohio State Bar Ass'n Informal Op. 00-02 (Apr. 25, 2000) (discussing obligations of attorneys representing deceased lawyer's estate with respect to closed client files of deceased and closed files of her lawyer father, who ceased practice in 1936; "overarching concern" is protecting client confidences and secrets; opinion instructs attorneys to return files to client where possible; where not, proper disposition is shredding or incineration of all except original or important papers, which should be made available to local bar association or Office of Disciplinary Counsel). Special care must be taken to assure that client information is appropriately safeguarded in effectuating the termination, with the instructions and wishes of the client given dominant consideration in the process. To the extent current clients are involved, the special provisions pertaining to safeguarding the interests of a client upon withdrawal apply. See section 1.16:500. With respect to protection of confidential client information in connection with the sale of a law practice, see section 1.17:300.
Duty to protect client information - Protection against inadvertent disclosure: Assuming that protected client information is involved, the lawyer must take special care to assure that that information is not disclosed inadvertently. For example, any communication of protected client information must be conducted in a manner consistent with reasonable expectations of privacy.
One area which has received substantial attention nationwide involves communications by cellular phone. See generally Eugene P. Whetzel, Cellular and Cordless Phones: Ethical Issues for Lawyers, 10 Ohio Law., Jan.-Feb. 1996, at 26 (describing the national trends). Because such communications may be easily intercepted, communication through this medium can result in inadvertent disclosure of client information that, in turn, might result in both absence of attorney-client privilege protection and an ethics violation. See generally id. It is unclear how Ohio will finally resolve this issue. Cf. State v. Bidinost, 71 Ohio St.3d 449, 462, 644 N.E.2d 318, 328-29 (1994) (in the context of finding that ORC 2933.52(A), which protects against unauthorized interception of telephone communications, applies to cordless telephone communications, the Court commented: "In any event, we seriously question the proposition that people communicating on cordless telephones have no legitimate expectation of privacy. Fundamental rights should not be sacrificed on the altar of advancing technology."). Nevertheless, the better approach is to avoid discussing client confidences or secrets through this medium if at all possible, in order to provide the client's interests the maximum protection.
With respect to electronic mail, the Board of Commissioners issued an opinion advising that the use of unencrypted email does not violate the duty to preserve clients' confidences and secrets, but that the lawyer must use professional judgment in determining whether its use is appropriate given the sensitivity of the information to be transmitted. Bd. of Comm'rs on Grievances & Discipline Op. 99-2, 1999 Ohio Griev. Discip. LEXIS 2 (Apr. 9, 1999). Cf. Bd. of Comm'rs on Grievances & Discipline Op. 99-9, 1999 Ohio Griev. Discip. LEXIS 10 (Dec. 2, 1999) (applying Opinion 99-2 in context of proposed use on law firm's world-wide-web site of online intake form that would enable web-site visitors to email legal questions to the law firm and receive responses by email from firm attorney). See also John Travis, E-Mail Confidences and Privileges, Clev. B.J., Sept. 2006, at 26.
These decisions, opinions, and articles, written under the former OHCPR, would seem to be generally compatible with the guidance offered in Ohio Rule 1.6 cmt. , which provides that the lawyer, in transmitting confidential information, "must take reasonable precautions to prevent the information from coming into the hands of unintended recipients." The comment goes on to explain that
[t]his duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentially include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this rule.
Id. Further discussion of this issue, in the specific contexts of email and cellular phones, is found at ABA, Annotated Model Rules of Professional Conduct 110-11 (6th ed. 2007) (commentary). Another issue arising under the new technology is the propriety of extracting of metadata from electronically transmitted documents. Id. at 111. See discussion in section 4.4:200.
In disposing of client papers, care must be taken to assure that they are disposed of in a way that prevents others from gaining access to them. Albert L. Bell, Recycling Confidential Paper, Ohio Law., Sept.-Oct. 1993, at 29. Shredding or burning papers to be discarded is recommended. Ohio St. Bar Ass'n Informal Op. 00-02 (Apr. 25, 2000).
Special complications may arise where lawyers with separate practices share office space and common support personnel. Under these circumstances, the chance of inadvertent disclosure of client confidences is more substantial. Although this type of sharing arrangement is permissible, special arrangements should be made to minimize inadvertent disclosure of client information. To this end, the Board of Commissioners on Grievances and Discipline instructed under the former OHCPR that
attorneys with separate law practices in the same building must maintain filing systems separate from and inaccessible to other attorneys. Computer access to client files must be limited to the client's attorney and staff in the absence of full disclosure to and consent of the client.
It is proper for attorneys who maintain separate practices to share non-lawyer personnel provided that each attorney exercise reasonable care to prevent the employees from disclosing or using confidences or secrets of a client as required by OH DR 4-101.
Bd. of Comm'rs on Grievances & Discipline Op. 91-9, 1991 Ohio Griev. Discip. LEXIS 21, at *1 (Apr. 12 1991) (syllabus). Accord Bd. of Comm'rs on Grievances & Discipline Op. 92-13, 1992 Ohio Griev. Discip. LEXIS 8 (June 19, 1992) (applying these principles to situation of assistant county prosecutor with part-time private practice sharing office space with another attorney whose practice included criminal-defense representation). If attorneys sharing office space and personnel serve as opposing counsel in a matter, the shared nonlegal personnel cannot work on both sides of the matter. Bd. of Comm'rs on Grievances & Discipline Op. 89-005, 1989 Ohio Griev. Discip. LEXIS 12 (Feb. 17 1989); cf. Ohio State Bar Ass'n Informal Op. 90-9 (Oct. 31, 1990) (attorney who represents clients under contract with child-support agency cannot use agency support staff and investigators who also would work for other parties in proceeding).
In contrast to the office-sharing situation, a lawyer is not allowed to be a member of, or be associated with, more than one law firm at a time. This is based, in part, on a concern that this more formal tie would create a greater potential for the disclosure of client information between various firms without the client's consent. Bd. of Comm'rs on Grievances & Discipline Op. 89-35, 1989 Ohio Griev. Discip. LEXIS 5 (Dec. 15, 1989). But see Bd. of Comm'rs on Grievances & Discipline Op. 2004-11, 2004 Ohio Griev. Discip. LEXIS 9 (Oct. 8, 2004) (permitting lawyer in Ohio firm to become "of counsel" to lawyer or firm in another state and vice-versa, provided applicable disciplinary rules not violated). To the same effect under the Rules of Professional Conduct is Bd. of Comm’rs on Grievances & Discipline Op. 2008-1, 2008 Ohio Griev. Discip. LEXIS 1 (Feb. 8, 2008). Opinion 2008-1 is not limited to cross-border “of counsel” relationships, but broadly approves a lawyer in one firm being of counsel to another firm. The opinion does not address confidentiality issues.
With respect to documents containing client information that one inadvertently sends to the other side (such as in response to a discovery request), see Rule 4.4(b), discussed in section 4.4:300, and section 1.6:500 infra at "Inadvertent disclosure."
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 4.21-4.22 (1996).
Former OH DR 4-101(B) identified three ways that confidential client information might be abused and prohibited lawyers from engaging in such conduct. Under that provision, a lawyer could not knowingly (1) reveal a client's confidence or secrets; (2) use such information to the disadvantage of the client; or (3) use such information for the advantage of the lawyer or a third-party unless the client consented to such use after full disclosure. Even though the language of 4-101(B) prohibited only "knowing" improper revelation or use of a confidence or secret, there were instances in which sanctions were imposed under the former disciplinary rule even where the revelation "was inadvertent." See Office of Disciplinary Counsel v. Yurich, 78 Ohio St.3d 315, 317, 677 N.E.2d 1190, 1192 (1997). (A prime example of "knowing" disclosure and use under the former OHCPR is Akron Bar Ass'n v. Holder, 102 Ohio St.3d 307, 2004 Ohio 2835, 810 N.E.2d 426, discussed this section infra at "Unauthorized disclosure and misuse.")
Under the Rules, a lawyer cannot disclose "information relating to the representation of a client . . ., unless the client gives informed consent," Ohio Rule 1.6(a), or unless an exception to confidentiality applies under Rule 1.6(b). Nor can a lawyer use such information to the disadvantage of the client, unless the client gives informed consent. Ohio Rule 1.8(b). In accordance with Rule 1.8 cmt. , the use-to-disadvantage-of-client prohibition includes uses to the benefit of the lawyer or a third person (such as another client) if such uses also disadvantage the client. Use for the lawyer's or another client's benefit is not prohibited if it does not disadvantage the client. See section 1.8:300.
The Rules thus differ in at least three respects from former OH DR 4-101(B): First, the "knowingly" requisite is no longer present; second, informed consent is expressly included as an exception to the prohibition against use to the disadvantage of a client; and third, there is no longer a category prohibiting use to the benefit of the lawyer or a third party, separate from the disadvantage-to-client prohibition. These differences must be kept in mind in the course of reviewing the following summary of the precedents under the former disciplinary rule.
Revealing client information: Former OH DR 4-101(B)(1) was violated when a lawyer, without the clients' knowledge or consent, disclosed financial information and their social security numbers to an out-of-state law firm with whom respondent had a contractual relationship to market and sell living trusts in Ohio. Columbus Bar Ass'n v. Willette, 117 Ohio St.3d 433, 2008 Ohio 1198, 884 N.E.2d 581. Likewise under 4-101(B)(1), a lawyer was disciplined for knowingly revealing the contents of a client's will to a beneficiary without the client's authorization. Stark County Bar Ass'n v. Miller, 44 Ohio St.3d 134, 541 N.E.2d 607 (1989). Unauthorized disclosure informing an individual that he had been named as a successor trustee in a living trust also was found to violate this provision. Office of Disciplinary Counsel v. Yurich, 78 Ohio St.3d 315, 677 N.E.2d 1190 (1997). A lawyer who represented an insured and obtained information that might have provided grounds for the insurance company to deny coverage could not reveal this information to the insurance company without violating the disciplinary rule. See, e.g., Cleveland Bar Ass'n Op. 149 (July 22, 1983). See also sections 1.7:315, 1.7:410, and 1.8:720. Even if the lawyer believed that disclosure was in the client's best interest, the information could not be revealed except under the limited circumstances set forth in OH DR 4-101(C). Toledo Bar Ass'n Op. 86-10 (Mar. 13, 1986) (OH DR 4-101(B) prohibited informing client's relative, over client's objection, of client's intent to file for bankruptcy, even if lawyer believed disclosure to be in client's best interest).
With the Willette case, supra, compare Ohio State Bar Ass’n v. Jackel, 118 Ohio St.3d 186, 2008 Ohio 1981, 887 N.E.2d 340, in which the parties stipulated to and the Court found a violation of DR 4-101(B)(1) where the confidential information (lists of assets) was obtained, not by respondent, but by representatives of a company marketing estate-planning services. After this initial consultation, the company would subsequently send the customer’s file to respondent for preparation of the legal documents, in accordance with the working relationship between respondent and the company. Given the stipulation of violation, there may well be a violation here somewhere, but a knowing revelation of a client confidence or secret by respondent is difficult to find on the facts provided in the opinion.
Misusing client information: See Ohio Rule 1.8(b), discussed in section 1.8:300.
Unauthorized disclosure and misuse: While the former disciplinary rule spoke separately about the unauthorized disclosure of client information and the misuse of such information, it was not uncommon for the lawyer's conduct to violate both concerns. See, e.g., Columbus Bar Ass'n v. Dye, 82 Ohio St.3d 64, 694 N.E.2d 440 (1998) (revelation of former client's psychological state, at federal court conflict-of-interest hearing to determine whether lawyer could continue to represent a co-defendant of former client, violated OH DR 4-101(B)(1), (B)(2), and (B)(3)); Bar Ass'n of Greater Cleveland v. Watkins, 68 Ohio St.2d 11, 427 N.E.2d 516 (1981) (attorney sanctioned under both OH DR 4-101(B)(1) and (B)(3) for revealing confidential information to client's employer and threatening to disclose information to taxing authorities as part of attempt to coerce client into dropping disciplinary complaint).
In Akron Bar Ass'n v. Holder, 102 Ohio St.3d 307, 2004 Ohio 2835, 810 N.E.2d 426, a unanimous Supreme Court found all three subdivisions of former OH DR 4-101(B) violated by the respondent, who disclosed his client's criminal record and other negative information to another client and third parties, and misused it "in an effort to prevent Wright's [a client] further involvement in the ECA project." Id. at para. 27. The Court rejected respondent's argument that because Wright's criminal record was a matter of public record and because Wright himself had revealed it to others, including in deposition testimony, there were no secrets disclosed. See further discussion of the "secrets" aspect of Holder in section 1.6:210, at "Information relating to the representation - Confidence and secrets."
Such dual use of the disclosure and use prohibitions (1.6(a) and 1.8(b), respectively) can be expected to continue under the Rules.
The former rule's protection against unauthorized use or disclosure of information obtained in the lawyer-client relationship, or use of same to the disadvantage of a client, attached regardless of whether the lawyer sought to use or reveal the information as a lawyer or in a nonlegal capacity. Ohio State Bar Ass'n Informal Op. 88-2 (Jan. 29, 1988) (lawyer who also was freelance nonlegal private investigator could not, in investigation undertaken by him as investigator, reveal or use to client’s disadvantage information gained from client in his capacity as attorney). Given the comparable prohibitions in Rules 1.6(a) and 1.8(b), this should continue to be the law under the Rules of Professional Conduct as well, subject to the exceptions there set forth.
Nondisciplinary remedies for abuse of client information: Disclosure of client information is not only a disciplinary offense, but also may be the basis for an action for money damages against the attorney for wrongful disclosure. See, e.g., Fellows v. Keating, No. 3913, 1988 Ohio App. LEXIS 797 (Trumbull Mar. 11, 1988). Further, in appropriate circumstances, an attorney can be enjoined from revealing client confidences. See, e.g., American Motors Corp. v. Huffstutler, 61 Ohio St.3d 343, 575 N.E.2d 116 (1991) (neither U.S. nor Ohio Constitution prohibits court from enjoining attorney's dissemination of information protected by attorney-client privilege). Fear of potential disclosure or misuse of protected client information, or actual disclosure or misuse that has already occurred, is a common ground for lawyer disqualification. See, e.g., Kala v. Aluminum Smelting & Ref. Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998) (side-switching attorney); Baker v. Bridgestone/Firestone, Inc., 893 F. Supp. 1349 (N.D. Ohio 1995) (breach of confidentiality by former in-house lawyer/employee and misuse of those confidences by counsel of record in case against employer; counsel of record disqualified). If the misuse takes the form of testimonial acts by the lawyer in litigation, such as the filing of affidavits containing protected information, which affidavits were potentially adverse to the interests of a former client, the improper material can be stricken from the record. Dietz-Britton v. Smythe, Cramer Co., 139 Ohio App.3d 337, 743 N.E.2d 960 (Cuyahoga 2000) (striking affidavits, containing information acquired during prior representation, prepared by former client's lawyers and submitted in support of former client's present adversary).
Sale of a law practice: Confidentiality concerns in connection with the sale of a law practice are addressed in Ohio Rule 1.17(c). That Rule provides that the selling lawyer may not share with a prospective purchaser "information relative to client representation or confidential material contained in client files" until the purchaser signs a confidentiality agreement. Such an agreement binds the signator "to preserve information relating to the representation of the clients of the selling lawyer, consistent with Rule 1.6, as if those clients were clients of the prospective purchasing lawyer." Id.
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 4.23-4.26 (1996).
Abuse of client information - The multiple-client problem - In general: Whenever a lawyer represents multiple clients, whether at the same time or at different times, it is possible that confidential client information obtained in one representation may be useful in another. The concern is that the lawyer may communicate information of client A to client B, or use client A's information for the benefit of client B to the disadvantage of A. Such unauthorized disclosure or use violates Ohio Rule 1.6 (disclosure) or 1.8(b) (use), unless an exception to the duty of confidentiality arises. With respect to the client consent exception, see, under the former OHCPR, Spivey v. Bender, 77 Ohio App.3d 17, 601 N.E.2d 56 (Lucas 1991) (lawyer who represented client on vehicular-homicide charge may represent children of client against now-former client for civil liability arising from same accident, with former client's consent). Id.
These concerns also raise conflict-of-interest problems, discussed at sections 1.8:300 (use of current-client information) and 1.9:400 (use or disclosure of former-client confidences).
Courts frequently apply a presumptive analysis in these situations -- that if the lawyer has relevant information from the first representation, the lawyer will use it in the second. See, e.g., Geauga County Bar Ass'n v. Psenicka, 62 Ohio St.3d 35, 577 N.E.2d 1074 (1991). In fact, the duty of loyalty to the second client may make it mandatory to do so. Psenicka supra; State v. Dillman, 70 Ohio App.3d 616, 591 N.E.2d 849 (Huron 1990) (conflict between duty of confidentiality to one client and duty of loyalty to another precluded public defender's office from representing two defendants with conflicting defenses charged with offenses stemming from the same transaction); Ussury v. St. Joseph Hosp., 43 Ohio App.3d 48, 49, 539 N.E.2d 700, 701 (Cuyahoga 1988) (lawyer with information obtained in representing client while at former firm, which information was pertinent to representation of different client at new firm, "has a professional duty to assist his new firm and their clients," which may conflict with duty of confidentiality owed prior client); Cincinnati Bar Ass'n Op. 90-91-08 (n.d.) (stressing competing obligations to protect former-client confidences while providing undiluted loyalty and zealous representation to current client); Cincinnati Bar Ass'n Op., reprinted in Ethics Opinion, Cincinnati Bar Rep., Oct. 1986, at 9) (attorney who formerly represented corporation and person now pursuing for corporation's benefit derivative action involving matters touching upon prior representation cannot, without full disclosure of potential conflict to both old and new clients and written consent from both to represent new clients, represent defendants in the derivative action, because it "would subject him either to charges by his former clients that secrets or confidences were revealed, or charges by his new clients that he was insufficiently vigorous in his defense of the action [in violation of Canon 7].")
In Psenicka, a lawyer who was discharged by the wife in a divorce action became husband's counsel. Only hearsay evidence supported the assertion that the lawyer had revealed confidential information relating to the wife's representation, and the lawyer denied that he had done so. Nevertheless, the hearing panel of the Board of Commissioners on Grievances and Discipline, noting the close relationship between the information shared by the wife with the lawyer and the extant issues in the dispute, concluded:
"[I]t is difficult to imagine how at least some of the information confided to Respondent by the wife would not influence or at least preclude Respondent from exercising his independent professional judgment in later representing the husband. The interests of one or the other, or both, are bound to be compromised."
* * *
"[I]t would be impossible, in fully representing the husband, not to use information which was acquired from his former client."
62 Ohio St.3d at 36, 577 N.E.2d at 1074-75. The Ohio Supreme Court found this conduct violated former OH DR 4-101(B)(2), 4-101(B)(3), and 5-105(A).
The issues raised here sometimes are handled by the disciplinary process, but often are treated in the context of a motion to disqualify counsel. Courts have recognized that the disciplinary and disqualification standards are not identical. Eg., Phillips v. Haidet, 119 Ohio App.3d 322, 695 N.E.2d 292 (Logan 1997); Centimark Corp. v. Brown Sprinkler Serv., 85 Ohio App.3d 485, 620 N.E.2d 134 (Ashtabula 1993). Nevertheless, because they overlap substantially in fact, the disqualification cases provide valuable insight into how these issues should be resolved.
Abuse of client information - The multiple-client problem - Acquisition of confidential client information: Questions arise at times concerning whether the lawyer gained confidential information in the first relationship, particularly where it involved only a single pre-employment interview to determine whether the client would retain the lawyer on the matter. In Cleveland Bar Ass'n Op. 101 (Sept. 11, 1973), the bar association confronted a situation where a lawyer held an initial interview with a wife concerning a possible divorce action. The wife later selected other counsel, and the husband retained the first lawyer. The wife complained about the husband's representation by the lawyer. Although the lawyer maintained that he had received no confidences or secrets from the wife during their single interview, "[t]he salient fact is that the wife believes she disclosed confidences and secrets to Attorney H which might enable Attorney H to better represent the husband." Id. at 6. The bar association concluded that this was enough to make the lawyer's representation of the husband improper.
If an individual lawyer receives confidential client information, it usually is presumed that all other lawyers at the firm do so as well, at least where the lawyers remain affiliated at the same firm. Compare Stevens v. Grandview Hosp. & Med. Ctr., No. 14042, 1993 Ohio App. LEXIS 5092 (Montgomery Oct. 20 1993) (an attorney's knowledge is imputed to his firm absent a contrary showing), and Janis v. Castle Apartments, Inc., 90 Ohio App.3d 224, 228, 628 N.E.2d 149, 151 (Summit 1993) ("The confidences, which are assumed to be disclosed in the attorney-client relationship, are also presumed to be disclosed to an attorney's fellow associates."), with Cincinnati Bar Ass'n Op. 90-91-08, at 2 (n.d.) ("absent direct proof to the contrary, an attorney would not be deemed to have shared confidential information relating to matters exclusively within the sphere of representation of another department of the same firm."). Complicated imputed-disqualification issues that arise where lawyers change firms are addressed in Rules 1.9 and 1.10. See sections 1.9:310 and 1.10:300. See also section 1.10:200. The leading Ohio case in this area is Kala v. Aluminum Smelting & Refining Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998), extensively discussed in sections 1.9:200 and 1.10:300.
In contrast, where one lawyer merely consults another lawyer outside the firm in representing a client, there is no presumption that the consulted lawyer has received confidential client information warranting disqualification should the consulted lawyer subsequently represent another against that client in a related matter. Janis v. Castle Apartments, Inc., 90 Ohio App.3d 224, 628 N.E.2d 149 (Summit 1993). Proof that such information was acquired is necessary.
Abuse of client information - The multiple-client problem - Relevance of confidential client information: If confidential information was obtained by the lawyer in the first representation, the question then becomes whether that information is sufficiently relevant to the second representation that its being revealed or misused should be presumed. It is now settled that the applicable test in Ohio (as it is generally) is the "substantial relationship" test. See Ohio Rule 1.9(a), adopting that test as articulated by the Supreme Court in Kala v. Aluminum Smelting & Refining Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998). The issue is discussed in detail at section 1.9:210. In a nutshell, a matter is substantially related if the matter involves "the same transaction or legal dispute or one in which there is a substantial risk that confidential factual information that would normally have been obtained in the prior representation would materially advance the position of another client in a subsequent matter." Ohio Rule 1.0(n). If the answer to the substantial relationship inquiry is yes, then the lawyer cannot represent the client in the subsequent matter where the client's interests are materially adverse to those of the former client, without the former client's informed, written consent. Ohio Rule 1.9(a). See also 2 Restatement (Third) of the Law Governing Lawyers § 132(2) (2000).
Abuse of client information - The multiple-client problem - Movant showing necessary to support disqualification: Where this issue arises on a motion to disqualify counsel based on the possibility that counsel may misuse information acquired in representing a former client, definitive resolution of this issue (at least in a "side-switching" case) is provided by Kala v. Aluminum Smelting & Refining Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998). In a case of first impression, the Ohio Supreme Court articulated a three-part test to be applied to determine whether disqualification is required when a lawyer leaves a firm and joins another firm that represents an opposing party of a client of the former firm:
In ruling on a motion for disqualification of either an individual (primary disqualification) or the entire firm (imputed disqualification) when an attorney has left a law firm and joined a firm representing the opposing party, a court must hold an evidentiary hearing and issue findings of fact using a three-part analysis:
(1) Is there a substantial relationship between the matter at issue and the matter of the former firm's prior representation;
(2) If there is a substantial relationship between these matters, is the presumption of shared confidences within the former firm rebutted by evidence that the attorney had no personal contact with or knowledge of the related matter; and
(3) If the attorney did have personal contact with or knowledge of the related matter, did the new law firm erect adequate and timely screens to rebut a presumption of shared confidences with the new firm so as to avoid imputed disqualification?
Id. at 1, 688 N.E.2d at 260 (1998) (syllabus). Thus, pursuant to Kala, the movant's initial burden is to demonstrate a substantial relationship, see section 1.9:210; if that is done, then the burden shifts to the lawyer to rebut the presumption by showing that he or she had no personal contact with or knowledge of the related matter. See section 1.9:200. If there was contact or knowledge, then the imputed disqualification issue under prong three comes into play. See sections 1.10:200-:300.
Abuse of client information - The multiple-client problem - Illustrative situations: The potential abuse of client confidences may arise in a variety of multiple-client situations. One common situation in which problems arise is when a lawyer who worked for a client on a particular matter switches sides on the same or a closely-related matter. Again, Kala is the leading case in Ohio. See also, e.g., Geauga County Bar Ass'n v. Psenicka, 62 Ohio St.3d 35, 577 N.E.2d 1074 (1991) (lawyer who represented wife in divorce action was discharged and became husband's counsel); Ohio State Bar Ass'n Informal Op. 77-13 (Sept. 2, 1977) (lawyer who represented minor driver in juvenile court regarding traffic offense sought to represent passengers in action against driver for personal injuries arising from incident); Cleveland Bar Ass'n Op. 101 (Sept. 11, 1973) (lawyer who had initial interview with wife about divorce action later represented husband in action). Cf. Cincinnati Bar Ass'n Op., reprinted in Ethics Opinion, Cincinnati Bar Rep., Oct. 1986, at 9 (attorney who formerly represented corporation and person now pursuing for corporation's benefit derivative action involving matters touching upon prior representations cannot represent defendants in derivative action). See generally section 1.9:200. A conflict is present even though the migratory lawyer does not work on the matter after changing firms. See, e.g., Ussury v. St. Joseph Hosp., 43 Ohio App.3d 48, 539 N.E.2d 700 (Cuyahoga 1988) (where member of law firm representing defendant was previously with law firm that represented plaintiff in same case, and where attorney reviewed materials and gave advice regarding plaintiff's case at his previous firm, a trial court may disqualify attorney's new law firm from representing defendants even though attorney has no direct responsibility for representing defendants). See section 1.9:300. The issues of imputation of the conflict to the lawyer's new firm and removal of imputation by screening are discussed in detail in sections 1.10:200-:300.
Similar problems can arise even if the current dispute does not involve the original client as a party. The Ohio State Bar Association cautioned a lawyer — who had consulted with A (the ex-wife of B) regarding visitation problems with B, and later sought to represent B in a divorce action between B and C (B's second wife) — that the lawyer could undertake the representation only if the lawyer had learned no information from A during the course of the consultation "that might be used to benefit 'B' in the subsequent proceedings or which could result in some adverse effect on 'A' if used in any subsequent proceeding even though 'A' is not involved in the subsequent proceeding." Ohio State Bar Ass'n Informal Op. 89-1, at 2 (Nov. 15, 1989). Similarly, the Cleveland Bar Association advised a lawyer to withdraw from representing a criminal defendant where a witness against the defendant had been a client of the attorney on an unrelated criminal matter, unless the witness consented to the use of the information or there was "no reasonable possibility that confidential information gained in the earlier representation will become involved." Cleveland Bar Ass'n Op. 150, at 1 (June 9, 1983).
Complex problems also may occur when, in the context of joint representation, a potential claim arises between the jointly represented parties. For example, in Ohio State Bar Ass'n Informal Op. 88-6 (Oct. 27, 1988), a lawyer was employed by an insurance company to defend husband and wife insureds in an action against them arising out of an automobile accident. During the course of the representation, it became apparent that the wife had a potential personal injury claim against her husband, who was the driver of their automobile at the time of the accident, and his insurance company. Information regarding the situation had been communicated to a claims attorney employed by the insurer. The bar association concluded that conflict-of-interest concerns barred the lawyer's representation of the husband in defense of the wife's claim, and the duty to protect client confidences barred the claims attorney from defending the husband as well. Id. at 6. While the claims attorney never formally represented the wife, the bar association analogized the claims attorney's situation to a lawyer who receives information in an initial consultation with an attorney. See generally sections 1.6:350 and 1.6:370.
In 1986, the Cleveland Bar Association addressed a situation in which an attorney who represented a husband and wife on certain matters became concerned that the husband had become incompetent, and that the wife was mishandling certain separate assets of the husband in violation of their antenuptial agreement and the terms of a trust set up for the husband's son and granddaughters from a previous marriage. Cleveland Bar Ass'n Op. 86-5 (Dec. 19, 1986). Citing both the conflict-of-interest and client-confidence provisions of the OHCPR, the bar association concluded that the lawyer could not warn the son of the trust abuse, or originate commitment proceedings for the husband and oppose the appointment of the wife as guardian. In either situation, the lawyer would be relying, at least in part, on client confidences of the wife to her detriment. The opinion left open an alternative if the wife's conduct constituted a fraud on the son or a prospective crime, instances in which disclosure was permitted under former OH DR 4-101(C).
In Cleveland Bar Ass'n Op. 129 (Sept. 2, 1976), an attorney jointly represented three individuals (A, B, and C) in the formation of a new business to compete with the individuals' current employer. Late in the representation, B dropped out of the new venture to remain with the original employer. In subsequent litigation by the employer against the defecting employees and others for unfair competition and violation of a trade secrets statute, the lawyer sought to represent the defendants. The bar association determined that because the lawyer had obtained from B confidential information that the lawyer could draw upon should B become a witness for the employer, the lawyer could not undertake the defense without B's consent.
With respect to former clients, there is no absolute rule that a lawyer can never represent a party against a former client. Bd. of Comm'rs on Grievances & Discipline Op. 89-013, 1989 Ohio Griev. Discip. LEXIS 20 (May 30, 1989) (cautioning against reading of OH DR 4-101(B) that would lead to this result). However, the lawyer must be certain that the present representation will in no way require the disclosure or use of former client confidences or secrets. Ohio State Bar Ass'n Informal Op. 80-5 (June 23, 1980) (authorizing lawyer to represent employee in wrongful discharge action against union the lawyer had represented, as long as these conditions were met); Toledo Bar Ass'n Op. 90-16, at 2 (July 18, 1990) (lawyer who formerly represented husband and wife could represent husband in their divorce action, unless during prior representation lawyer "had any attorney-client communications or received any confidential information which could be used against the wife or might jeopardize [the] representation of the husband"); Toledo Bar Ass'n Op. 89-7, at 1 (July 14, 1989) (lawyer could represent new client in suit against former client where "it appears that you have no knowledge of any kind that would give you or your client an unfair advantage"); Toledo Bar Ass'n Op. 84-6, at 1 (Sept. 25, 1984) (attorney who represented wife in restitution action against third party could represent husband in divorce action where lawyer "did not learn any confidence or secret from the wife which has any bearing on the current domestic action").
In contrast to the situation of conflicting representations, it has been suggested that a qualified legal referral organization that refers clients to other attorneys may obtain confidential information from parties with conflicting interests as part of the screening process. The organization can refer those cases out to practicing attorneys, as long as the private attorney is given no access to the confidential information of the adverse party. Ohio State Bar Ass'n Informal Op. 87-1 (June 22, 1987). See section 7.3:500.
Confidentiality and common representation: In those instances in which conflict-of-interest concerns do not preclude common representation of multiple clients in the same matter, confidentiality issues still need to be addressed. See Ohio Rule 1.7 cmts. 26 (emphasizing importance of effect on confidentiality and attorney-client privilege in determining appropriateness of common representation) and 27 (examining in some detail the duty of confidentiality in such circumstances). As a general matter, if one client asks that information relevant to the representation not be shared with another client, "continued common representation will almost certainly be inadequate," given the equal duty of loyalty to each client, and the right of each client to access to all information relating to the representation that might affect his or her interests. Thus, the lawyer must explain at the outset, as a part of obtaining the informed consent of each client, that information confidential to the common clients will be shared for the benefit of the common representation and that the lawyer will have to withdraw if one of the clients decides that information material to the representation must be kept from the other(s). In limited circumstances, it may be possible to proceed even if certain information of a common client must be kept from the other(s); if so, this must be established at the outset, as a part of the informed consent of all clients, and can be put in place only if such a limitation will not compromise the lawyer's ability to represent effectively all of the clients involved. The example given in the comment is a joint venture representation in which the lawyer concludes that one client's trade secrets need not be shared with the other joint venturer. Rule 1.7 cmt. 27.
The material in this section is excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 1.46 (1996).
As an aid to lawyers with substance abuse or mental health problems, the Ohio State Bar Association has established a statewide lawyers' assistance committee to provide counseling in these matters. In the course of their work, lawyers who serve on this committee frequently obtain information about individual attorneys that, if obtained in other circumstances, would have to be reported to disciplinary authorities under Ohio Rule 8.3(a). To encourage lawyers with substance abuse problems to seek the aid of lawyers' assistance committees, Rule 8.3(c) provides that information obtained by a lawyer while serving on such a committee is privileged for purposes Rule 8.3 and thus need not be disclosed. The Rule provides bar associations flexibility in structuring their responses to substance-abuse problems by extending the privilege protection to members of a bar committee or subcommittee designed to assist lawyers with substance-abuse problems as well as to any member, employee, or agent of a nonprofit corporation established by the bar association for such purposes.
Pursuant to Ohio Rule 1.6(a), the prohibition against disclosure covers all information "relating to the representation of a client." Unlike the former OHCPR, it need not be "gained in the professional relationship." Since the confidentiality rule applies to any information "relating to the representation," if that condition is satisfied, information acquired prior to becoming a lawyer would be protected under the Rule, unless an exception is applicable. See further discussion in section 1.6:210 at "Information relating to the representation - Timing or context of acquisition of such information."
- Primary Ohio References: Ohio Rule 1.6
- Background References: ABA Model Rule 1.6
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 4.23, 4.34-4.38.
- Commentary: ABA/BNA § 55:101; ALI-LGL §§ 59-66; Wolfram §§ 6.1, 6.7
There are four bases set forth in Ohio Rule 1.6(a) pursuant to which the lawyer may (or must) disclose information relating to the representation of a client: First, where the client gives informed consent; second, where disclosure is impliedly authorized in order to carry out the representation; third, where the disclosure is permitted by division (b); and fourth, where disclosure is required by division (c). Section 1.6:310 treats the first two exceptions to the duty of confidentiality. Sections 1.6:320-:370 deal with permissive disclosure under division (b), and section 1.6:395 discusses mandatory disclosure pursuant to division (c).
To the extent disclosure is permissive and falls under Ohio Rule 1.6(b), the comments to the Rule provide some guidance concerning how to evaluate that discretionary choice. Comment 15 suggests that one might consider "the nature of the lawyer's relationship with the client and with those who might be injured by the client, the lawyer's own involvement in the transaction and facts that may extenuate the conduct in question." Ohio Rule 1.6 cmt. .
Although not discussed in the text of Ohio Rule 1.6, the comments also provide guidance in terms of how a lawyer can discuss work with others, even if the conversation does not clearly fall into a Rule-based exception – for example, a discussion with a colleague or spouse about the day's work. To this end, Comment  provides: "A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved." Ohio Rule 1.6 cmt. . See 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 9.15, at 9-62 through 9-64 (3d ed. Supp. 2004-2) (discussing "shop-talk").
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 4.34-4.35 (1996).
Disclosure impliedly authorized as necessary to the representation: Ohio Rule 1.6(a) provides that a lawyer can reveal information relating to the representation of a client if "the disclosure is impliedly authorized in order to carry out the representation." As stated in Comment ,
a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.
Ohio Rule 1.6 cmt. . This is not a license to share client information indiscriminately within a firm, but an implicit authorization to do so to the extent it is helpful in carrying out the representation. (Compare the "shop-talk" exception," discussed in section 1.6:300 above.)
Presumably, the implied authorization set forth in 1.6(a) would also carry forward the approval in former OH EC 4-3 of sharing "limited information" with those outside the firm as "necessary" for accounting, printing and "other legitimate purposes," as long as those to whom the information is revealed are carefully selected and warned to keep the information confidential. That this exception has its limits is well illustrated in the insurance situation where counsel for the insured is compensated by the insured's insurance company. To control costs, the insurance company may ask the lawyer to submit detailed billing information as part of a legal audit of the bill. Compliance with such a request did not fall within the ambit of former OH EC 4-3. As the Board of Commissioners on Grievances and Discipline commented:
In this Board's view, [E]thical Consideration 4-3 does not authorize disclosure of legal bills without client consent to an outside auditing company. The information sought in a legal audit often goes beyond "limited" information. Depending upon the information contained therein, a billing invoice might reveal client confidences and secrets. Revealing confidences and secrets of an insured to an outside audit company serves the economic advantage of the insurer. The economic benefit of an insurer is not considered a "legitimate purpose" under EC 4-3.
Bd. of Comm'rs on Grievances & Discipline Op. 2000-2, 2000 Ohio Griev. Discip. LEXIS 2, at *13-14 (June 1, 2000).
In the estate planning context, the Ohio Supreme Court held under the Code that a lawyer did not have implied authority to inform a person named a successor trustee in a living trust that he has been so named. To do so disclosed a confidence of the trustors/clients without their consent; moreover, it was done as a part of a marketing campaign by the lawyer to advance his own interests, not those of his clients. Office of Disciplinary Counsel v. Yurich, 78 Ohio St.3d 315, 677 N.E.2d 1190 (1997).
In Hazard and Hodes' view, the implied authorization exception is similar to the requisite of intended confidentiality under the attorney/client privilege (as to which see section 1.6:430 infra) and as such covers disclosure of confidential information to others when it is to the client's advantage:
When that is the case, the information is clearly protected as confidential by Model Rule 1.6, but just as clearly disclosure is "impliedly authorized to carry out the representation." Indeed, in most situations contemplated by this clause in Rule 1.6(a), the whole point of the lawyer's learning the information was so that it could be disclosed at the right time and in the most effective way, in order to advance the client's interests.
1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 9.17, at 9-65 through 9-66 (3d. ed Supp. 2004-2). The authors provide examples, such as conveying to the court the client's ability to go to trial as scheduled, conveying confidential information to a third party during negotiations, or assisting the client in making statements to a court or third parties, as in responding to discovery demands or filing forms with a regulatory agency. Id. at 9-66. The authors further note that in most of these situations the client has not issued instructions in the matter and may even oppose such disclosures if it had a choice in the matter. Id. Implied authorization is thus separate from disclosures made with client consent, the subject to which we now turn.
Client consent: A lawyer always can reveal client information with the consent of the client, provided the consent is "informed." Ohio Rule 1.6(a). Cf. Cleveland Bar Ass'n Op. 101 (Sept. 11, 1973) (upholding implied consent to client's former lawyer's use of client confidences and secrets, apparently without any pre-consent "full disclosure" by the former lawyer, where the client's current attorney fully advised her about situation and where former lawyer's possession of relevant confidences and secrets was in doubt). If the information pertains to more than one client, each must authorize its release.
With respect to "informed consent," see Ohio Rule 1.0(f) & cmts. -. To the extent a lawyer seeks client consent to submit billing information to an insurance company for audit arising from representation of the company's insured, "full disclosure includes informing the client of the type of information required by the insurer in the billing invoice, the type of supporting documentation, if any, required by the audit, and that waiver of attorney-client privilege might be raised as a consequence." Bd. of Comm'rs on Grievances & Discipline Op. 2000-2, 2000 Ohio Griev. Discip. LEXIS 2, at *1 (June 1, 2000) (syllabus) (applying former OHCPR).
At times, consent may be implied from a client's failure to object to the lawyer's conduct, such as where a lawyer represents a current client in an action against a former client and the former client fails to raise a timely objection to the representation. See, e.g., Cleveland Bar Ass'n Op. 101 (Sept. 11, 1973) (where lawyer (L) had single pre-employment interview with wife in divorce action, wife employed another attorney and husband employed L, wife's tactical decision not to object immediately constituted implied consent and barred subsequent objection to L's representation of husband).
Ohio Rule 1.6(b)(1) adopts the reasonably-certain-death-or-substantial-bodily-harm exception of MR 1.6(b)(1). As elaborated in Comment , "[d]ivision (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat." For example,
a lawyer who knows that a client has discharged toxic waste into a town's water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer's disclosure is necessary to eliminate the threat or reduce the number of victims.
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 4.36 (1996).
A lawyer may reveal information relating to the representation in order to prevent the commission of a crime, whether by the client or another person. Ohio Rule 1.6(b)(2). Compare former OH DR 4-101(C)(3), which limited such disclosure to potential crimes of a client. See, under the OHCPR, Cleveland Bar Ass'n Op. 86-2 (July 25, 1986) (where appeal of criminal conviction is terminated while client is free and client informs lawyer of intent not to report to authorities, lawyer may notify authorities of client's intentions and whereabouts if the case is felony, because client's failure to report would be crime, but may not do so if case is misdemeanor, because failure to report, in that situation, is not crime). As with the other subdivisions, Rule 1.6(b)(2) is permissive, not mandatory, although other provisions of law may make it mandatory. For example, a lawyer representing a spouse in a divorce action may learn from his client that the other spouse is physically abusive to the children. This information constituted a confidence or secret under former OH DR 4-101(A), but if there was a risk of endangering a child under ORC 2912.22(A) and a lawyer reasonably believed his client would be violating that provision, then the attorney could, under DR 4-101(C)(3), report confidences or secrets indicating the crime of child endangerment. Cleveland Bar Ass'n Op. 92-2 (July 17, 1992). Issues raised by Opinion 92-2 are examined in Carol Rogers Hilliard, Reporting v. Maintaining Confidentiality, Clev. B.J., Jan. 2006, at 10.
The disciplinary rule was silent as to the level of certainty the lawyer must have about the client's criminal intentions before the lawyer was authorized to speak, although most likely something more than a mere suspicion was required. In this regard, the Cleveland Bar Association stated that disclosure was appropriate only when the lawyer "possesses evidence indicating beyond a reasonable doubt that a crime will be committed." Cleveland Bar Ass'n Op. 125, at 9 (Sept. 2, 1976). The present formulation is less demanding -- disclosure is permitted "to the extent the lawyer reasonably believes" it is necessary prevent the client or another from committing a crime. Rule 1.6(b)(2).
It is important to recognize that this exception authorizes revelation of client information only with respect to crimes not yet committed, although that category may include continuing crimes as well as future ones. See Toledo Bar Ass'n Op. 82-3 (Apr. 19, 1982) (if client's theft of documents constitutes continuing crime, then lawyer may disclose information under former OH DR 4-101(C)(3)). See also Toledo Bar Ass'n Op. 91-21, at 2 (n.d.) (noting that client's conduct in remaining out of state to avoid being subpoenaed as witness in criminal action might be considered continuing crime triggering the OH DR 4-101(C)(3) exception, but concluding that such argument was "far-fetched"). See generally Charles W. Wolfram, Modern Legal Ethics § 12.6.5, at 674 (1986) (discussing the confused state of the law on the continuing-crime question nationally). The exception does not authorize the lawyer to reveal information pertaining to past crimes. (But see Ohio Rule 1.6(b)(3), discussed in section 1.6:340 below.) See also section 1.6:620.
Even if a lawyer discloses confidential client information under Rule 1.6(b)(2), disclosure should be limited to alerting authorities of the intent of the client or other person to commit a crime and such information as is necessary to prevent it. Cf. In re Original Grand Jury Investigation, 89 Ohio St.3d 544, 547, 733 N.E.2d 1135, 1138 (2000) (lawyer's reading to authorities of entire contents of letter concerning client's intent to commit crime "actually went beyond what DR 4-101(C)(3) allows" (comma deleted)).
Under Ohio Rule 1.6(b)(3), disclosure of information relating to the representation may be made if the lawyer reasonably believes it necessary "to mitigate substantial injury to the financial interests or property of another that has resulted from the client's commission of an illegal or fraudulent act, in furtherance of which the client has used the lawyer's services." Note that Ohio Rule 1.6(b)(3), unlike its Model Rule counterpart (MR 1.6(b)(3)),
substitutes "illegal" for "crime," as the Ohio Rules do in numerous other places (Rules 1.2(d), 1.16(b)(2), 4.1(b), 8.4(b)), a change that is discussed generally in section 1.2:600.
With respect specifically to Rule 1.6(b), this change creates a potentially confusing dichotomy as to when certain of the division (b) exceptions apply. Thus, disclosure permitted under division (b)(2) is triggered when the lawyer reasonably believes such disclosure is necessary to prevent any person (including the client) from committing a "crime," but division (b)(3) permits disclosure to mitigate substantial financial injury resulting from a client's "illegal" or fraudulent act in which the client has used the lawyer's services.
The change in Ohio Rule 1.6(b)(3) is also another instance in which Ohio is outside the mainstream of Model Rule states: our research indicates that only Michigan uses "illegal" instead of "criminal" -- see its Rule 1.6(c)(3) (permissive disclosure to rectify consequences of illegal or fraudulent act by client), while New Jersey's version of the same permissive-disclosure provision (its Rule 1.6(d)(1)) uses the formulation "criminal, illegal or fraudulent act."
Ohio Rule 1.6(b)(3) looks backward only, at mitigating substantial financial injury "that has resulted" from a client's past illegal or fraudulent conduct. In contrast, MR 1.6(b)(3) is directed to preventing, mitigating, or rectifying such injury "that is reasonably certain to result or has resulted" from client criminal or fraudulent conduct. (Compare MR 1.6(b)(2), directed toward preventing the client from committing a criminal or fraudulent act reasonably certain to cause such injury.).
This difference between the Ohio and Model Rule approaches is lessened to some extent by Ohio's Rule 1.6(b)(2), which deals with permissive disclosure necessary to prevent the client "or other person" from committing a crime (fraud is not mentioned) -- without regard to whether the consequences involve substantial financial injury to another -- and by Rule 4.1(b), pursuant to which the lawyer must disclose when necessary to avoid assisting the client in an illegal or fraudulent act. Concerning mandatory disclosure under Rule 1.6(c), see section 1.6:395.
Division (b)(3) does not apply to a lawyer representing a client accused of illegal or fraudulent conduct or to a lawyer engaged by an entity to investigate alleged violations of the law by the client or one or more of its constituents. Ohio Rule 1.6 cmt. .
The reader should also be aware of the provisions contained in the SEC rules (Part 205 of 17 CFR) promulgated under § 307 of the Sarbanes-Oxley Act (15 USC § 7245 (2002)), concerning permissive disclosure of confidential information by a lawyer for a publicly traded company. See 17 CFR § 205.3(d)(2).
Ohio Rule 1.6(b)(4) (identical to MR 1.6(b)(4)) provides that
A lawyer may reveal information relating to the representation of a client . . . to the extent the lawyer reasonably believes is necessary:
* * * *
(4) to secure legal advice about the lawyer's compliance with these rules.
Rule 1.6 cmt.  elaborates that "[i]n most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation." But even where it is not, "division (b)(4) permits such disclosure because of the importance of a lawyer's compliance with the Ohio Rules of Professional Conduct." Id. The Task Force's Ohio Code Comparison to Rule 1.6 states that this exception "codifies the common practice of lawyers to consult with other lawyers about compliance with these rules." See also 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 9.21B (3d ed. Supp. 2004-2).
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 4.38 (1996).
A lawyer may reveal client information necessary to defend himself against accusations of wrongful conduct. Ohio Rule 1.6(b)(5). The requisites of this exception are that (1) the lawyer "reasonably believes" it necessary to (2) disclose "information relating to the representation" (including privileged information) in order (3)(i) "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client," such as a fee dispute, see Bd. of Comm'rs on Grievances & Discipline Op. 91-16, 1991 Ohio Griev. Discip. LEXIS 13 (June 14, 1991); (ii) "to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved," see, e.g., Suravec v. LaCouture, 82 Ohio App.3d 416, 612 N.E.2d 501 (Montgomery 1992) (malpractice defense); or (iii) "to respond to allegations in any proceeding, including any disciplinary matter, concerning the lawyer's representation of the client." See, e.g., Toledo Bar Ass'n Op. 90-19 (Sept. 5, 1990).Circumstances (ii) and (iii) are not limited to claims, charges, or allegations by the client, so long as they are premised, respectively, on "conduct in which the client was involved" or "the lawyer's representation of the client." See ABA, Annotated Model Rules of Professional Conduct 107 (6th ed. 2007) (commentary).
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 4.38 (1996).
A lawyer may reveal client information necessary to establish the fee owed. Ohio Rule 1.6(b)(5) & cmt. . Cf. Ohio Rule 3.7(c)(2) (allowing lawyer in litigation also to serve as witness if "the testimony will relate solely to the nature and value of legal services rendered in the case to the client by the lawyer or the firm"). Under the former OHCPR, the Board of Commissioners approved a lawyer's sharing of client information with a collection agency hired to collect delinquent legal fees owed the lawyer, but only to the extent "necessary" to establish or collect the fee. Bd. of Comm'rs on Grievances & Discipline Op. 91-16, 1991 Ohio Griev. Discip. LEXIS 13 (June 14, 1991). In its opinion, the Board further defined the limits of permissible disclosure in this context:
This Board's opinion is that the law firm may disclose to the collection agency the client's name, billing address and the amount of money owed. However, since information regarding the nature of the legal services would not always be necessary to establish or collect the fee, it should not be revealed to the collection agency unless necessary.
Id. at *7.
The fee-dispute exception, however, does not insulate a lawyer from being disqualified where he brings a lawsuit against former clients (and others), not only with respect to a fee dispute concerning the allocation of proceeds of a prior judgment obtained by the lawyer for the former clients (which prior representation necessarily involved disclosure to the lawyer of sensitive financial information and other confidences), but also various other claims, on behalf of his firm and a nonlawyer co-plaintiff, seeking, inter alia, to recoup on behalf of the co-plaintiff fees allegedly owing for financial and tax advisory services. "Thus, it is abundantly clear that the within complaint amounted to far more than an attempt by an attorney to collect a professional fee." Thomas L. Meros Co., L.P.A. v. Grange Mut. Cas. Ins. Co., 134 Ohio App.3d 299, 303, 730 N.E.2d 1063, 1066 (Cuyahoga 1999) (finding no abuse of discretion in trial court's grant of motion to disqualify based on confidentiality concerns; "the facts of this case go far beyond the narrow exception outlined in" former DR 4-101(C)(4), id. at 302, 730 N.E.2d at 1066).
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 4.37 (1996).
A lawyer may reveal client information when disclosure is reasonably believed by the lawyer to be necessary to comply "with other law or a court order." Ohio Rule 1.6(b)(6).
By its terms, Rule 1.6(b)(6) appears permissive; a lawyer "may" reveal information relating to the representation of a client in order to comply with law or court order. See Rule 1.6 cmt. , which states that division (b) "permits but does not require the disclosure" and that a lawyer's decision not to disclose "does not violate this rule." In fact, however, when disclosure is required by law or court order, and all defenses to disclosure are exhausted, the lawyer for all practical purposes must make the disclosure. See Rule 1.6 cmts.  &  (recognizing that disclosure may be compelled by other law or court order, but stating that in such circumstances Rule 1.6(b)(6) "permits" the lawyer "to make such disclosures as are necessary to comply with the law" or "with the court's order"). See In re Original Grand Jury Investigation, 89 Ohio St.3d 544, 733 N.E.2d 1135 (2000) (lawyer compelled to turn over to grand jury, in compliance with subpoena, incriminating and threatening letter written by client to his brother; "courts have interpreted provisions similar to [former] DR 4-101(C)(2) in such a manner as to require disclosure." Id. at 547, 733 N.E.2d at 1138.). As is stated in ABA, Annotated Model Rules of Professional Conduct 109 (6th ed. 2007) (commentary), "[u]ltimately . . . Rule 1.6 defers to a final order of the court."
Sometimes the requirement to reveal client information derives from a statute, such as ORC 2151.421(A)(2), requiring attorneys to report child abuse in certain circumstances. See Cleveland Bar Ass'n Op. 92-2 (July 17, 1992) (confidential communication by client/wife about abusive behavior by husband against both wife and their child; mandatory duty of lawyer to report protected information only if client under 18 years of age; here, "the client is the mother, presumably over eighteen years of age, and not the child." Id. at 3.) Careful attention must be given to the statutory language to make sure that the provision actually requires disclosure. For example, a statute that requires the separate disposal of paper and other recyclables should not be read as requiring the disclosure of client information contained on the paper, since the statute can be complied with while still protecting client information through proper disposal techniques such as shredding. Albert L. Bell, Recycling Confidential Paper, 7 Ohio Law., Sept.-Oct. 1993, at 29.
With respect to disclosure arising from a court order to do so, see Cleveland Bar Ass'n Op. 86-2 (July 25, 1986) (even though lawyer may not reveal client's intent not to report to authorities when appeal of misdemeanor conviction is terminated, because that is neither fraud on tribunal or crime, lawyer may do so if so ordered by court). And where a prospective client has testified voluntarily about a communication with the attorney and thereby waived the statutory attorney-client privilege, the attorney can be compelled by court order to testify on the same subject. Bd. of Comm'rs on Grievances & Discipline Op. 91-15, 1991 Ohio Griev. Discip. LEXIS 14 (June 14, 1991) (explaining implications of ORC 2317.02(A), concerning waiver of attorney-client privilege, and former OH DR 4-101(C)(2)). See also Ohio State Bar Ass'n Informal Op. 78-5 (July 27, 1978) (lawyer is not in violation of ethical obligation to preserve client confidences if court determines that information at issue falls outside attorney-client privilege and orders lawyer to testify). Even though client "secrets" are involved, a subpoena duces tecum issued by a grand jury to a lawyer must be complied with, because the disclosure is "required by law or court order." In re Original Grand Jury Investigation, 89 Ohio St.3d 544, 733 N.E.2d 1135 (2000). In accord, as to the required-by-law-or-court-order point, is State v. Doe, 101 Ohio St.3d 170, 2004 Ohio 705, 803 N.E.2d 777, discussed in section 1.6:500 infra. In all likelihood, this exception does not apply in the absence of an actual court order or other compulsion of law. Cf. Columbus Bar Ass'n v. Dye, 82 Ohio St.3d 64, 694 N.E.2d 440 (1998) (lawyer sanctioned for revealing information about former client's mental condition in conflict-of-interest hearing in federal court to determine whether lawyer could continue to represent former client's co-defendant; no mention in opinion of possibility that OH DR 4-101(C)(2) might apply). But see possible argument to the contrary in discussion of the Grand Jury opinion at section 1.6:380.
In a matter of first impression in Ohio, the Supreme Court held that the analogous exception in former OH DR 4-101(C)(2) did not permit a monitor, appointed pursuant to a Supreme Court order in a disciplinary proceeding, to have access to confidential materials of the monitored attorney, including those protected by the attorney-client privilege, where the lawyer's clients refused to waive the privilege. Allen County Bar Ass'n v. Williams, 95 Ohio St.3d 160, 2002 Ohio 2006, 766 N.E.2d 973. Noting that the few cases in other jurisdictions that have considered the issue require the monitor to respect the privilege, the Court found "no authority that DR 4-101(C)(2) covers the functions of a monitor who is attempting to help an attorney on probation from harming his clients." Id. at ¶ 14.
The monitor will not be authorized to examine respondent's privileged client correspondence, or the matters discussed in client meetings and other communications, but only the consistency and promptness with which the respondent attends to client matters.
Id. at ¶ 16.
One complex question that has arisen in this area is what to do when a client pays the attorney with $10,000 or more in cash. Pursuant to 26 USC § 6050I, the IRS requires that the transaction and the client's identity be reported on Form 8300. Reporting the client's identity, however, may subject the client to governmental investigation and the possibility that the client may be charged with a crime and ultimately convicted. In United States v. Ritchie, 15 F.3d 592 (6th Cir. 1994), the Sixth Circuit affirmed the enforcement of an IRS summons to secure such information from a lawyer who refused to make the requisite filing. The court indicated that it, like the vast majority of courts, did not consider the information to be protected by the attorney-client privilege. Given Ritchie, it would appear, at a minimum, that a lawyer must disclose the information upon a court order enforcing the IRS summons. The tenor of the opinion's attorney-client privilege discussion, 15 F.3d at 602, makes it likely that the court would have found disclosure consistent with DR 4-101(C)(2) as well. A prior advisory opinion to the contrary, Bd. of Comm'rs on Grievances & Discipline Op. 90-04, 1990 Ohio Griev. Discip. LEXIS 11 (Apr. 20, 1990), was withdrawn by the Board in light of Ritchie.
Another common problem is whether it is proper for an attorney to divulge to law enforcement authorities the whereabouts of the client. This issue has been addressed in a number of state and local bar association opinions in Ohio. The first question is whether the whereabouts of a client is, in and of itself "information relating to the representation" under Rule 1.6. (For a discussion of cases dealing with this issue in the context of attorney-client privilege, see section 1.6:450.) While opinion drafters often defer on this issue as a question of law outside their domain, the Ohio State Bar Association treated the question of a client's whereabouts as confidential information, at least in the context where the client had skipped out on a bond and the lawyer's disclosure would have involved telling the police or bonding company when the client would be in the lawyer's office. Ohio State Bar Ass'n Informal Op. 95-4 (Mar. 7, 1995). Even if the information is not protected, the Toledo Bar Association has advised that the lawyer "certainly [is] under no obligation to make any effort to ascertain the whereabouts" of a client, if the attorney is unaware of it. Toledo Bar Ass'n Op. 92-4 (n.d.).
Assuming information on the client's location is considered protected client information, then it may not be disclosed by the attorney unless an exception to the confidentiality rules applies. If the client has not authorized disclosure under 1.6(a), the question would depend on whether disclosure is necessary to prevent reasonably certain death or substantial bodily harm, 1.6(b)(1), the commission of a crime, 1.6(b)(2), or is required by law or a court order, 1.6(b)(6), or, under Ohio Rule 1.6(c), is necessary to comply with another rule, such as 4.1(b).
Arguably, various provisions of the Ohio Revised Code pertaining to law enforcement may require disclosure under Ohio Rule 1.6(b)(6). See Ohio State Bar Ass'n Informal Op. 86-8 (Dec. 18, 1986) (raising this issue under former OHCPR but refusing to resolve it because it involved rendering an opinion on an issue of law). These provisions include
the failure to report a crime, ORC 2921.22, although ORC 2921.22(G)(1) exempts from the disclosure requirement information "privileged by reason of the relationship between attorney and client,"
the failure to aid law enforcement authorities, ORC 2921.23, and
obstruction of justice, ORC 2921.32.
Even if these statutory provisions do apply, the attorney should proceed with caution. For example, in a 1991 opinion, the Toledo Bar Association addressed a situation in which a wife informed her attorney that her husband, also a client, and another individual were out of state to avoid being subpoenaed as witnesses to a third party's admission of guilt to murder. The opinion advised that, given that the prosecutor already knew that the murder itself had been committed, "[f]ailure to disclose that alleged fact is not necessarily tantamount to failure to report that a felony has been committed." Toledo Bar Ass'n Op. 91-21, at 2 (n.d.). If the law does not require disclosure, then the lawyer may not disclose the information unless and until the state secures a court order compelling the attorney to do so. Ohio State Bar Ass'n Informal Op. 95-4, at 5 (Mar. 7, 1995) (voluntarily revealing to police or bonding company that client who had skipped out on bond would be in the lawyer's office would violate duty of confidentiality and undercut the client's "time-honored right to consult counsel"). If there is an order compelling disclosure, the lawyer is duty-bound to raise the attorney-client privilege if it arguably applies.
A 2008 opinion by the Board of Commissioners has opined that if a lawyer has unclaimed client funds in his IOLTA account and the client’s identity or whereabouts is unknown, the lawyer does not violate the Rule 1.6 duty of confidentiality in reporting the client’s name if known and the amount owing; such disclosure falls within the authorized-by-law exception of Rule 1.6(b)(6). Bd of Comm’rs on Grievances & Discipline Op. 2008-3, 2008 Ohio Griev. Discip. LEXIS 3 (Aug. 15, 2008).
In a case of first impression in Ohio, the Supreme Court determined that physical evidence (a letter) of a client's threatened crime must be turned over to the authorities. In re Original Grand Jury Investigation, 89 Ohio St.3d 544, 733 N.E.2d 1135 (2000). This duty arose under former OH DR 4-101(C)(2), which provided for disclosure whenever law or court order (in this case a grand jury subpoena) so required. (The comparable OHRPC provision is Rule 1.6(b)(5).) Affirming the court of appeals, the Supreme Court held
that where an attorney receives physical evidence from a third party relating to a possible crime committed by his or her client, the attorney is obligated to relinquish the evidence to law-enforcement authorities and must comply with a subpoena issued to that effect.
89 Ohio St.3d at 549, 733 N.E.2d at 1140. (The Court likewise agreed with the appellate court that the finding of contempt imposed by the trial court on the lawyer for refusing to relinquish the letter should be vacated, on condition that the lawyer comply with the subpoena. Id.)
In accord with commentary nationally, the Supreme Court read OH DR 4-101(C)(2), which was couched in permissive terms ("A lawyer may reveal" . . . [c]onfidences or secrets when . . . required by law or court order), as imposing a mandatory duty. See 89 Ohio St.3d at 547, 733 N.E.2d at 1138-39. In the absence of a law or court order mandating disclosure, it would appear that disclosure of criminal intent on the part of the client was permissive, pursuant to OH DR 4-101(C)(3) (now Ohio Rule 1.6(b)(1)). This is not entirely clear, however, because the Court's holding, quoted above, stated that "the attorney is obligated to relinquish that evidence [of threatened client crime] to law-enforcement authorities and must comply with a subpoena issued to that effect [rather than "when a subpoena is issued to that effect."]." This probably is reading too much into the use of "and," but the Court's formulation makes the broader reading possible. In dissent with respect to this issue, Justice Pfeifer (joined by two other justices) argued that even the narrower reading was improper and that the attorney's prior voluntary revelation of the contents of the letter to the authorities pursuant to OH DR 4-101(C)(3) should have ended the matter.
The Court's opinion in the Grand Jury case also indicated that it looked with favor on those cases from other jurisdictions that require disclosure of physical evidence, whether it is evidence of a client's crime or a fruit or instrumentality thereof. Id. at 548, 733 N.E.2d at 1139 ("In essence, the confidentiality rules do not give an attorney the right to withhold evidence."). And, in distinguishing a decision of the Supreme Judicial Court of Massachusetts ( Purcell v. Dist. Attorney, 676 N.E.2d 436 (Mass. 1997)) ruling against mandatory disclosure, the Ohio Court noted that in Purcell the evidence had come to the attorney directly from the client and thus involved attorney-client privilege concerns. Thus, the possibility exists that the Grand Jury mandatory disclosure rule might not apply to confidential information coming directly from the client.
See further discussion of this case at sections 1.6:210 and 1.6:370.
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 4.23 (1996).
As a general matter, the conflict-of-interest rules prohibit a lawyer from directly opposing a current client on behalf of another current client, even in wholly unrelated matters, where confidential client information typically would not be threatened. Ohio Rule 1.7(a)(1). See Charles W. Wolfram, Modern Legal Ethics § 7.3.2 (1986). (The exception to this general rule is found in Rule 1.7(b), setting forth the limited circumstances, including informed consent of both clients, in which such directly adverse representation may go forward.) Of course, if the direct adversity occurs in the same case, where confidentiality would inevitably be jeopardized, Ohio Rule 1.7(c)(2) imposes an absolute ban, irrespective of client consent. (As stated by Wolfram, id., this situation resembles "Dr. Jekyll and Mr. Hyde played as a lawyering comedy, except for the serious consequences involved," citing an Ohio case, Lake County Bar Ass'n v. Gargiulo, 62 Ohio St.2d 239, 404 N.E.2d 1343 (1980), where the respondent became embroiled in a foreclosure action in which he sued his own clients and filed claims on behalf of each of them against the other.) See sections 1.7:200-:310.
Confidentiality concerns more often arise in disputes involving the interests of former clients (see section 1.9:400), or current clients jointly represented by the attorney (see section 1.6:240). Under these circumstances, the lawyer faces both conflict-of-interest and client confidentiality problems. Former-client cases raising both problems include Kala v. Aluminum Smelting & Ref. Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998) (side-switching attorney case in which confidentiality concerns discussed; see section 1.9:400); Columbus Bar Ass'n v. Dye, 82 Ohio St.3d 64, 694 N.E.2d 440 (1998) (lawyer sanctioned for revealing information about former client's mental condition in conflict-of-interest hearing in federal court to determine whether lawyer could continue to represent former client's co-defendant; conduct violated both client-confidences and conflict-of-interest rules); Geauga County Bar Ass'n v. Psenicka, 62 Ohio St.3d 35, 577 N.E.2d 1074 (1991) (lawyer who was discharged by wife in divorce action and became husband's counsel was sanctioned for violating both client confidence and conflict-of-interest rules); Ussury v. St. Joseph Hosp., 43 Ohio App.3d 48, 539 N.E.2d 700 (Cuyahoga 1988) (where attorney who reviewed materials and gave advice relating to plaintiff's case at former firm moved to firm representing defendant, trial court, in response to both client confidence and conflict-of-interest concerns, could disqualify attorney's new firm from representing defendants, even though attorney had no direct responsibility in representation); Ohio State Bar Ass'n Informal Op. 77-13 (Sept. 2, 1977) (both conflict-of-interest and confidentiality concerns arise if lawyer who represented minor driver in juvenile court regarding traffic offense later represents passengers in action against driver for personal injuries); Cincinnati Bar Ass'n Op. 90-91-08 (n.d.) (citing both concerns in analyzing creditors' attorney's proposed change in practice to representing debtors against his former clients).
Similarly, confidentiality and conflict issues are present when a lawyer uses protected client information for the lawyer's own personal interests to the disadvantage of the client. Ohio Rule 1.8(b) & cmt. . See sections 1.6:230 and 1.8:300.
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 4.37 (1996).
Ohio Rule 1.6(c) provides that a lawyer must reveal client information relating to the representation when the lawyer reasonably believes disclosure is necessary to comply with Rules 3.3 and 4.1. (There is no provision comparable to Ohio Rule 1.6(c) in MR 1.6.) Ohio Rule 3.3(b) and (c) require that in representing a client in an adjudicative proceeding, an attorney having knowledge of past, present, or future criminal or fraudulent conduct related to the proceeding must take reasonable steps to remedy the situation, including, if necessary, disclosure to the tribunal, even where it would require the disclosure of client information otherwise protected by Rule 1.6. See section 3.3:610. Nor may the lawyer knowingly fail to disclose material facts necessary to avoid assisting a client's illegal or fraudulent act, even if it would otherwise be protected from disclosure by Rule 1.6. Ohio Rule 4.1(b) & cmt.  thereto. See section 4.1:300. Disclosure should be made, however, in a manner that protects client information as much as possible. Toledo Bar Ass'n Op. 82-3 (Apr. 19, 1982) (client theft of employer's documents during course of representation was fraud that had to be corrected, but return of documents without disclosing their origin or fact of theft should be attempted, to protect client confidences).
It should be noted in this connection that Ohio Rule 1.6 cmt.  contains information that is suspect. As is pointed out in Bd. of Commr's on Grievances & Discipline Op. 2007-1, 2007 Ohio Griev. Discip. LEXIS 1, at *16 (Feb. 9, 2007), an opinion dealing with the scope of the Rule 8.3 reporting duty, Comment 15 has been adopted from the Model Rule template without taking into consideration the substantive differences between the Ohio and Model Rules. As a result, Ohio Rule 1.6 cmt.  states, in language substantively identical to MR 1.6 cmt. , that "[s]ome rules require disclosure only if such disclosure would be permitted by division (b). See Rule 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this rule." But the Ohio terrain is significantly different: As noted above, Ohio Rule 4.1(b) (in addition to 3.3(c)) requires disclosure of information otherwise protected by 1.6 (see Rule 1.6(c)), whereas MR 4.1(b) expressly excludes from the disclosure duty information protected by MR 1.6. With respect to 8.3, as stated by the Board in Opinion 2007-1,
[t]he inference from Comment  is that Rule 8.3 requires disclosure of information only if such disclosure is permitted by Rule 1.6(b). The Board rejects this interpretation because it is inconsistent with Ohio’s Comment  to Rule 8.3 which departed from the ABA Comment  to Rule 8.3. As already stated, Ohio chose to shield only privileged information from the Rule 8.3 reporting duty. Ohio did not choose to shield from the reporting duty all of the information protected by Rule 1.6.
Id. at *16 (emphasis by the Board). See further discussion of Opinion 2007-1 and disclosure limitations under Rule 8.3 in section 8.3:400.