Sunday, April 5, 2020

And We Really Mean It: The Most Dangerous Rule of Professional Conduct

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.” 

Today we jump all the way to #1 on our “Most Dangerous” Hit Parade Countdown:  Rule 1.6(a) – Confidentiality of Information.

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
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

Application of Colo. RCP 1.6(a) is nicely illustrated by two recent Colorado cases.  In People v. John Palmer Waters, 18PDJ014 (February 26, 2019), respondent was disbarred for, among other reasons, violating Rule 1.6(a).  In a spleen-venting of truly epic proportion, Waters bore his frustrated soul to the court in a successful motion to withdraw from a criminal case.  The averments in the motion included:

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.

A second, more recent case, illustrates when disclosure may be found to be impliedly or otherwise “authorized.”   In People v. Juliet Rene Piccone, 19PDJ041, (January 13, 2020), Piccone, an animal law practitioner and self-described animal rights activist, undertook representation of various clients pursuant to an engagement agreement which, among other provisions, purported to “authoriz[] her to disclose any ‘non-confidential  information  from  the  public  record.’”  Id. at 19.  Some client’s legal fees were paid or defrayed through crowdfunding. 

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.