As amended by Rule Change 2018(6), effective April 12, 2018:
Unless the client gives informed consent, the lawyer shall not disclose details relating to the client’s representation, the disclosure is implicitly allowed to conduct the representation, or the disclosure is permitted by paragraph (a) (b).
A lawyer can disclose details relating to a client’s representation to the degree reasonably considered appropriate by the lawyer:
(1) the avoidance of a fairly certain death or serious damage to the body;
(2) to disclose the purpose of the client to commit a crime and the necessary details to deter the crime;
(3) to prevent a client from committing fraud which is fairly likely to cause serious harm to another’s financial interests or property and to the advancement of which the client has used or is using the services of the lawyer;
(4) the avoidance, mitigation or correction of a serious damage to the financial interests or property of someone which is fairly likely to result from, or has resulted from, the commission by the client of a crime or fraud for which the client has used the services of the lawyer;
(5) to provide legal advice on the lawyer’s compliance with these regulations, other laws or orders of the court;
(6) to make, on behalf of the lawyer, a claim or defense in a dispute between the lawyer and the client, to establish a defense against the lawyer based on the conduct in which the client was involved, or to respond to claims in any proceeding relating to the representation of the client by the lawyer;
(7) identify and address conflicts of interest resulting from the change of employment of a lawyer or from changes in the structure or ownership of a company, but only if the disclosed information is not covered by the privilege of the attorney-client and its disclosure is not reasonably likely to materially prejudice the client otherwise; or if the disclosed information is not protected by the privilege of the attorney-client and its disclosure is not reasonably likely to materially prejudice the client otherwise;
(8) comply with other laws or with a court order.
An attorney must make appropriate efforts to avoid the inadvertent or improper disclosure of, or unauthorized access to, information relating to the client’s representation.
Observations
This rule regulates the disclosure to a lawyer of details related to a client’s representation during the client’s representation by a lawyer. See Rule 1.18 for the duties of the lawyer with regard to information supplied by a prospective client to the lawyer, Rule 1.9(c)(2) for the duty of the lawyer not to disclose information relating to the previous representation of a former client by the lawyer, and Rules 1.8(b) and 1.9(c)(1) for the duties of the lawyer with regard to the use of such information to the detriment of clients and former clients.
In the client-lawyer partnership, a fundamental concept is that, in the absence of the client’s informed consent, the lawyer does not disclose details related to the representation. For the concept of informed consent, see Rule 1.0(e). This adds to the trust that is the cornerstone of the partnership between the client and the lawyer. Thus, the client is advised to obtain legal advice and to consult with the lawyer thoroughly and openly as to the embarrassing or legally adverse subject matter. To adequately represent the client and, if possible, to advise the client to refrain from wrongful conduct, the lawyer needs this knowledge. Based on practice, lawyers know that the advice provided is followed by almost all clients, and the law is upheld.
The concept of confidentiality of the client-lawyer is upheld by similar bodies of law: the right of the attorney-client, the doctrine of the work-product and the confidentiality rule defined in professional ethics. In judicial and other proceedings in which a lawyer might be called as a witness or otherwise compelled to provide evidence involving a client, the attorney-client privilege and work-product doctrine apply. In cases other than those where information is sought from the lawyer by force of law, the rule of client-lawyer confidentiality applies. For example, the rule of confidentiality applies not only to matters communicated in confidence by the client, but also to all representation-related information, whatever its source. Except as allowed or necessary by the Rules of Professional Conduct or other legislation, a lawyer does not reveal such information. See The Distance, too.
Section (a) forbids a lawyer from sharing details related to a client’s representation. This restriction also extends to statements by a lawyer that do not disclose protected information in themselves but may fairly contribute to the discovery by a third party of such information. The use of a hypothetical by a lawyer to address representation-related problems is acceptable as long as there is no fair risk that the audience will be able to discern the client’s identity or the situation involved.
Approved Divulgation
Except to the degree that the orders of the client or exceptional circumstances restrict that power, an attorney is implicitly allowed to make disclosures about the client, where necessary, when the representation is carried out. For example, in certain cases, a lawyer might be indirectly allowed to admit a fact that cannot be adequately denied or to make a disclosure that makes it easier to resolve a matter satisfactorily. Lawyers in a firm may reveal to each other information relating to a client of the firm in the course of the practice of the firm, unless the client has ordered that specific information be limited to designated lawyers.
Disclosure Unfavorable to Client
The overarching importance of life and physical integrity is recognized in Paragraph (b)(1) and requires reasonably required disclosure to avoid reasonably certain death or serious bodily harm. Such harm is fairly likely to occur if it is imminently suffered or if there is a present and serious danger that at a later date a person will suffer such harm if the lawyer fails to take the appropriate steps to remove the threat. Therefore, if there is a present and significant risk that a person who drinks water will contract a life-threatening or crippling disease, a lawyer who knows that a client has inadvertently discharged hazardous waste into the water supply of a city may disclose this information to the authorities, and the disclosure of the lawyer is important to remove the danger or minimize the number of victims.
Paragraph (b)(2) requires disclosure of the client’s intention to commit a crime in the future and authorizes the disclosure of the necessary details to deter the crime. For completed offences, this paragraph does not apply. While paragraph (b)(2) does not require the lawyer to disclose the intention of the client to commit a crime, the lawyer may not advise or assist the client in conduct that the lawyer knows is criminal. See Rule 1.2 hereof (d). See also Rule 1.16, with regard to the duty or privilege of the lawyer to withdraw from the representation of the client under certain cases, and Rule 1.13(c), which requires the lawyer, if the client is an entity, to, under limited circumstances, disclose details relating to the representation
Paragraph (b)(3) is a narrow exception to the confidentiality rule that requires the lawyer to reveal details to the extent necessary to prevent the client from committing fraud as specified in Rule 1.0(d), to the extent necessary to encourage the affected persons or reasonable authorities to prevent the client from committing fraud as defined in Rule 1.0(d), which is fairly likely to cause serious harm to the financial or property interests of another person and to facilitate the fraud. The security of this rule is forfeited by such a serious misuse of the attorney-lawyer relationship by the client. Naturally, by refraining from wrongful conduct, the client may avoid such disclosure.
Section (b)(4) deals with the case where the prosecutor does not hear of the crime or fraud committed by the client until after it has been committed. While the client no longer has the option of avoiding exposure by refraining from wrongful conduct, there can be cases where the damage incurred by the injured party can be avoided, corrected or mitigated. In such cases, the lawyer can, to the extent required to allow the affected parties to fairly avoid or mitigate such losses or to seek to recoup their losses, reveal details relating to representation. Paragraph (b)(4) does not apply when a person who has committed a crime or fraud subsequently hires an attorney to represent the offense.
The confidentiality duties of an attorney do not prohibit an attorney from receiving confidential legal advice on the personal duty of an attorney to comply with these regulations, other laws, or court orders. In certain cases, the lawyer would be indirectly allowed to reveal details to secure some advice to carry out the representation.