It has been almost 5 years since I last wrote about The 5 Most Dangerous Rules of Professional
Conduct. In 2013 I described the
booby-trap that is Rule
1.18, a rule that converts “prospective
clients,” who never engage you or pay a fee, into disqualifying conflict time-bombs. In 2015 I compiled An Informed Consent Concordance, a catalog of all the places in
the rules where “informed consent” must be provided to a client, and where this
must be documented “in a writing signed by the client” or merely “confirmed in
writing.”
I previously posited this standard for ranking the “most
dangerous” rules:
What qualifies a Rule as
“dangerous?” In selecting my finalists I
employed two criteria: the risk of inadvertent violation and the potential
damage resulting therefrom.
I might add in the case of Rule 1.6 a third criteria: the
frequency of opportunity for inadvertent violation
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| Kenny Delmar, announcer for Your Hit Parade |
Applying these standards, Casey Kasem, or his
predecessor, Kenny Delmar
(the announcer for the classic old time radio program Your Hit Parade), would have no trouble proclaiming Rule 1.6(a)
numero uno. Rule 1.6 earns this lofty ranking for several
reasons.
The Risk of Inadvertent Violation
First the scope of Rule 1.6 is misapprehended, especially by
attorneys of a certain age – mine. Those
of us who became licensed under the prior ABA Code of Professional Responsibility
(“CPR”) recall DR
4-101 - Preservation of Confidences and Secrets of a Client. This rule divided verboten disclosures into two
classes: “confidences” and “secrets.”
“Confidence” refers to information protected by the attorney-client privilege under applicable
law, and “secret” refers to other
information gained in the professional relationship that the client has requested be held inviolate
or the disclosure of which would be embarrassing
or would be likely to be detrimental
to the client.
DR 4-101(A) (emphasis added). It was an easy rule to apply. If something was protected by the
attorney-client privilege, a rule of evidence, you could not disclose it. If the client asked you not to reveal certain
information you could not disclose it.
If disclosure of client information would be embarrassing or “be likely
to be detrimental to the client” you could not disclose it. Rule 4-101(A) simply codified common sense
and good manners.
When the ABA adopted the Rule of Professional Conduct, DR
4-101 became Rule 1.6(a), and the transmogrification was a game-changer. Rule 1.6(a) is also easy to apply. No more identifying or distinguishing
“confidences” from “secrets.” Instead,
the Rule simply states:
A lawyer shall not reveal information
relating to the representation of a client unless
the client gives informed consent, the disclosure is impliedly authorized in
order to carry out the representation, or the disclosure is permitted by
paragraph (b).
(Emphasis added.)
Simple, huh? Well, apparently not
so based on 37 years of experience.
And We Really Mean It
When I attended the University
of Oregon School of Law in the before time I had the great
fortune to study with Dean Emeritus Eugene
Scoles. (My personal tribute to
Gene, one of scores, can be read here.) Among the many things I recall about Gene was
a quip he would make when bemoaning how court had converted an indisputably unambiguous
provision of the Uniform Probate Code into unrecognizable legal sausage: “The only way the legislature could have made
itself any plainer was if it had added, ‘and we really mean it!’” The American Bar Association should have
heeded Gene’s advice in crafting Rule 1.6(a).
When Rule 1.6(a) says “information relating to the
representation of a client,” it means any
information from any source. And it really
means it. “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.” Colo.
RPC 1.6, Comment [3]. Simple, yes?
Well, yes – simple in its absoluteness. But to those of us who came of age under DR
4-101, Rule 1.6(a) proved to be the biggest trap in the new Rules. Surely you can tell people who your clients
are, right? Or if you read something
about your client in the paper, you could tell your friends to check it out. Right?
Or if a colleague called you and said, “Charles, I see you were the
winning lawyer in the Breidleston case. Congratulations! I would love to see you brief, but it is not
available online. Could you please send
me a copy?” Surely you can do that, right? I mean it’s a public record for Christ’s
sake. Under DR 4-101(A), no problemo.
None of these things are “confidences” or “secrets,” unless,
perhaps, you represent the mob or someone involved in a scandalous divorce. Under
Rule 1.6(a), however, the answer is no, no, and HELL NO!!!
When Rule 1.6 says “information relating to the
representation of a client” it means any information
from any source, and it really means
it. It doesn’t matter if your client’s
story is splashed all over the front page of every newspaper in the English
speaking world, above the fold, in 4-inch headlines. If the story relates to your client, you
cannot even discuss it without your client’s “informed consent” or one of the
eight exceptions enumerated in Rule 1.6(b).
In short, under Rule 1.6, you can tell people you are a lawyer and that
you have clients. That’s it.
Frequency of Opportunity for Inadvertent Violation
So broad, so sweeping, and such a departure from DR 4-101(A)
was Rule 1.6 that many lawyers never adapted, or simply could not believe it. They experienced a kind of cognitive
dissonance. Moreover the frequency of opportunity for
inadvertent, genuinely innocent violation is off the charts. What lawyer wants to tell the colleague
asking for a copy of his Brandies Brief, “Gee, I’m sorry Bill, but even though
I could send you a PDF of my brief in under 30 seconds, you’ll just have to go
down to the court and pay $.50 a page,” or “Bill I would be glad too, but I
need to first get my client’s informed consent.” Unless Bill is an ethicist or has otherwise
been initiated into the mysteries of Rule 1.6 he’ll think you’re nuts or an ass. Further, what marketing lunch or presentation
does not include some client name-dropping and a few client war stories? How many law firm website lists of “representative
clients and cases” have first been cleared and documented to establish that the
clients’ “informed consent” was obtained?
Damn few.
Rule 1.6(a) is simple all right, but it flies in the face of
common sense. It is an extreme
over-reach. Some states, such as
Massachusetts, have addressed the problem directly. Massachusetts’
adoption of Rule 1.6(a) limits its scope to disclosure of “confidential
information.” Comment 3[A] to its
enactment provides:
[3A] “Confidential
information” consists of information gained during or relating to the
representation of a client, whatever its source, that is (a) protected by the
attorney-client privilege, (b) likely to be embarrassing or detrimental to the
client if disclosed, or (c) information that the lawyer has agreed to keep
confidential. “Confidential information” does not ordinarily include (i) a
lawyer’s legal knowledge or legal research or (ii) information that is
generally known in the local community or in the trade, field or profession to
which the information relates.
In short, Massachusetts has reverse-engineered Rule 1.6(a)
to preserve the ethical standard of DR 4-101(A).
The Colorado Trial Lawyers Association and the Colorado
Defense Lawyers Association, supported by the Colorado Bar Association’s
Litigation Council, has proposed a similar amendment to Colo. RPC 1.6(a):
A lawyer shall not reveal a
confidence or secret of a client, unless the client gives informed consent or
the disclosure is permitted by paragraph (b). “Confidence” refers to
information protected by the attorney-client privilege under applicable law,
and “secret” refers to other information gained in the professional
relationship that the client has requested be held inviolate or the disclosure
of which would be embarrassing or would likely be detrimental to the client.
So far this proposal, another reversion to DR 4-101(A), has
failed to gain traction, despite its obvious merit.
We Meant What We Said and We Said What We Meant
13. To undersigned counsel’s complete
surprise, there were over 303 pleadings filed and over 35 court-appearances. Numerous contempts. A judge recuses herself, etc.
14. Most disturbing was the
full-day hearing set for this July 5th, 2017, which Mr. Raines never told undersigned
counsel about. Needless to say,
undersigned counsel felt lied to, or, at least, “tricked” into taking this
case.
15. It got worse.
16. After a number of phone calls to
Mr. Raines, his guardian angel, Cheryl Power[], and his grandmother, undersigned
counsel decided to stick it out and try to keep costs to a minimum, telling him
to focus on his felony stalking case and dealing with this case down the road.
Client agreed to this.
Waters “acknowledged
that many of
the statements in
his motion were based
on information he
had learned in
conversations with Raines
or contained his impressions of the case, although he also noted that some of the
information was of public record,
such as Raines’s
pending criminal charges.” (Emphasis added.)
Waters’ disclosures clearly would have violated DR 4-101(A),
as well as the proposed amendment to Rule 1.6 by the CTLA and the CDLA. However, it is the Presiding Disciplinary
Judge’s observations regarding the scope of Rule 1.6(a) that are most germane
to our topic:
While Respondent may have garnered some
of this information from another source, the confidentiality rule applies to
all matters communicated in confidence by the client and to all information
relating to the representation, whatever
its source.38 Accordingly, we conclude that Respondent violated
Colo. RPC 1.6(a). See Colo. RPC 1.6
cmt. 3; see, e.g., Iowa Supreme Court Att’y Disciplinary Bd. v.
Marzen, 779 N.W.2d 757, 766 (Iowa 2010) (finding that all lawyer-client
communications, even those including publicly available information, are
confidential).
18PDJ014
at 9 (n.38 included) (emphasis added).
And they really mean it.
Charged with publishing eight posts on social media that
revealed client information, some of which disclosed confidential attorney-client
communications and disparaged her clients, Piccone pointed to the limited
waiver in her engagement agreement, and further argued that disclosure was
“impliedly authorized” under Rule 1.6(a) because:
[C]lient authorization to make certain
disclosures is “inherent” in crowdfunding legal fees, as “people won’t donate
on a case if there’s no reason to donate.” Because she could not raise funds unless
she provided information to donors, she reasoned, her clients’ implied waiver
of Colo. RPC 1.6(a) as to discussions of finances and details of their cases was
“part and parcel” of the clients’ permission to raise funds on their behalves.
The Presiding Disciplinary Judge found that, in some
instances, respondent had faithfully adhered to her engagement agreement: “Respondent
generally posted only after information had been released in the public sphere,
either by her clients or in government records.” 19PDJ041
at 21.
We
also find that Respondent’s disclosures during the cases, including the sums
raised and the funds needed to continue the representations, were in furtherance
of her crowdfunding efforts and impliedly authorized by her clients to
accomplish their goals. She apprised her clients in her engagement agreement and
in follow-up discussions that she would be posting to social media about their
need for funding, just as they had agreed that she would do.
Id. Unfortunately for Piccone, Judge Lucero also
found that “eight of Respondent’s social media communications fall into neither
category, and for this reason we find that Respondent violated Colo. RPC 1.6(a).” Id. at
22. For this and other ethics violations,
Piccone was suspended from the practice of law for six months, with the
suspension stayed upon the successful completion of a two-year probation.
The Piccone case
is significant not so much for Ms. Piccone’s ethical lapses, but for her
ingenuity in anticipating and providing for reasonable exclusions from the operation
and excesses of Rule 1.6(a). It is even
more noteworthy for the Presiding Disciplinary Judge’s willingness to enforce
the limited waiver provided in Piccone’s engagement agreement, and for giving
effect to Rule 1.6(a)’s provision for “impliedly authorized” disclosures.
The scope of Colo. RPC 1.6 remains one of the best “Bar bets”
in the legal ethicist’s repertoire. Twenty-seven
years following its adoption by the Colorado Supreme Court it continues to
trick and trip-up otherwise ethical lawyers who simply cannot believe it means
what it says. “Gotcha” ethics rules rarely
equate to good policy, and Rule 1.6 is the biggest “gotcha” in the Rules of
Professional Conduct. Twenty-seven years
is long enough. It’s time to rein in Colo.
RPC 1.6(a) and restore common sense to the rules regarding protection of client information.
