Iowa R. Prof'l Conduct 32:1.6

(a) 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) or required by paragraph (c).

(b) A lawyer may reveal information relating to the representation of a client to the extent

the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) 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;

(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of

another that is reasonably certain to result or has resulted from the client’s commission of a

crime or fraud in furtherance of which the client has used the lawyer’s services;

(4) to secure legal advice about the lawyer’s compliance with these rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the

lawyer and the client, to establish a defense to a criminal charge or civil claim against the

lawyer based upon conduct in which the client was involved, or to respond to allegations in

any proceeding concerning the lawyer’s representation of the client; or

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment

or from changes in the composition or ownership of a firm, but only if the revealed information

would not compromise the attorney-client privilege or otherwise prejudice the client.

(c) A lawyer shall reveal information relating to the representation of a client to the extent the

lawyer reasonably believes necessary to prevent imminent death or substantial bodily harm.

(d) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized

disclosure of, or unauthorized access to, information relating to the representation of a client.

Comment

[1] This rule governs the disclosure by a lawyer of information relating to the representation of

a client during the lawyer’s representation of the client. See rule 32:1.18 for the lawyer’s duties

with respect to information provided to the lawyer by a prospective client, rule 32:1.9(c)(2) for the

lawyer’s duty not to reveal information relating to the lawyer’s prior representation of a former

client, and rules 32:1.8(b) and 32:1.9(c)(1) for the lawyer’s duties with respect to the use of such

information to the disadvantage of clients and former clients.

[2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s

informed consent, the lawyer must not reveal information relating to the representation. See rule

32:1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark

of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to

communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject

matter. The lawyer needs this information to represent the client effectively and, if necessary, to

advise the client to refrain from wrongful conduct. Almost without exception, clients come to

lawyers in order to determine their rights and what is, in the complex of laws and regulations,

deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow

the advice given, and the law is upheld.

[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the

attorney-client privilege, the work product doctrine, and the rule of confidentiality established in

professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and

other proceedings in which a lawyer may be called as a witness or otherwise required to produce

evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other

than those where evidence is sought from the lawyer through compulsion of law. The confidentiality

rule, for example, applies not only to matters communicated in confidence by the client but also to

all information relating to the representation, whatever its source. A lawyer may not disclose such

information except as authorized or required by the Iowa Rules of Professional Conduct or other

law. See also Scope.

[4] Paragraph (a) prohibits a lawyer from revealing information relating to the representation of

a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal

protected information but could reasonably lead to the discovery of such information by a third

person. 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.

Authorized Disclosure

[5] Except to the extent that the client’s instructions or special circumstances limit that authority,

a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out

the representation. In some situations, for example, 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.

Permissive Disclosure Adverse to Client

[6] Although the public interest is usually best served by a strict rule requiring lawyers to preserve

the confidentiality of information relating to the representation of their clients, the confidentiality

rule is subject to limited exceptions. Paragraph (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 in the

near future 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. Thus, a lawyer who knows

that a client has accidentally 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.

[7] Paragraph (b)(2) is a limited exception to the rule of confidentiality that permits the lawyer

to reveal information to the extent necessary to enable affected persons or appropriate authorities

to prevent the client from committing a crime or fraud, as defined in rule 32:1.0(d), that is

reasonably certain to result in substantial injury to the financial or property interests of another and

in furtherance of which the client has used or is using the lawyer’s services. Such a serious abuse

of the client-lawyer relationship by the client forfeits the protection of this rule. The client can, of

course, prevent such disclosure by refraining from the wrongful conduct. Although paragraph (b)(2)

does not require the lawyer to reveal the client’s misconduct, the lawyer may not counsel or assist

the client in conduct the lawyer knows is criminal or fraudulent. See rule 32:1.2(d). See also rule

32:1.16 with respect to the lawyer’s obligation or right to withdraw from the representation of the

client in such circumstances, and rule 32:1.13(c), which permits the lawyer, where the client is an

organization, to reveal information relating to the representation in limited circumstances.

[8] Paragraph (b)(3) addresses the situation in which the lawyer does not learn of the client’s

crime or fraud until after it has been consummated. Although the client no longer has the option of

preventing disclosure by refraining from the wrongful conduct, there will be situations in which the

loss suffered by the affected person can be prevented, rectified, or mitigated. In such situations, the

lawyer may disclose information relating to the representation to the extent necessary to enable the

affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses.

Paragraph (b)(3) does not apply when a person who has committed a crime or fraud thereafter

employs a lawyer for representation concerning that offense.

[9] A lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential

legal advice about the lawyer’s personal responsibility to comply with these rules. In most situations,

disclosing information to secure such advice will be impliedly authorized for the lawyer to carry

out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4)

permits such disclosure because of the importance of a lawyer’s compliance with the Iowa Rules of

Professional Conduct.

[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client’s

conduct or other misconduct of the lawyer involving representation of the client, the lawyer may

respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is

true with respect to a claim involving the conduct or representation of a former client. Such a charge

can arise in a civil, criminal, disciplinary, or other proceeding and can be based on a wrong allegedly

committed by the lawyer against the client or on a wrong alleged by a third person, for example,

a person claiming to have been defrauded by the lawyer and client acting together. The lawyer’s

right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does

not require the lawyer to await the commencement of an action or proceeding that charges such

complicity, so that the defense may be established by responding directly to a third party who has

made such an assertion. The right to defend also applies, of course, where a proceeding has been

commenced.

[11] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the services rendered

in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a

fiduciary relationship may not exploit it to the detriment of the fiduciary.

[12] Other law may require that a lawyer disclose information about a client. Whether such a

law supersedes rule 32:1.6 is a question of law beyond the scope of these rules. When disclosure

of information relating to the representation appears to be required by other law, the lawyer must

discuss the matter with the client to the extent required by rule 32:1.4. If, however, the other law

supersedes this rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such

disclosures as are necessary to comply with the law.

Detection of Conflicts of Interest

[13] Paragraph (b)(7) recognizes that lawyers in different firms may need to disclose limited

information to each other to detect and resolve conflicts of interest, such as when a lawyer is

considering an association with another firm, two or more firms are considering a merger, or a

lawyer is considering the purchase of a law practice. See rule 32:1.17, comment [7]. Under these

circumstances, lawyers and law firms are permitted to disclose limited information, but only once

substantive discussions regarding the new relationship have occurred. Any such disclosure should

ordinarily include no more than the identity of the persons and entities involved in a matter, a brief

summary of the general issues involved, and information about whether the matter has terminated.

Even this limited information, however, should be disclosed only to the extent reasonably necessary

to detect and resolve conflicts of interest that might arise from the possible new relationship.

Moreover, the disclosure of any information is prohibited if it would compromise the attorney-client

privilege or otherwise prejudice the client (e.g., the fact that a corporate client is seeking advice on a

corporate takeover that has not been publicly announced; that a person has consulted a lawyer about

the possibility of divorce before the person’s intentions are known to the person’s spouse; or that

a person has consulted a lawyer about a criminal investigation that has not led to a public charge).

Under those circumstances, paragraph (a) prohibits disclosure unless the client or former client

gives informed consent. A lawyer’s fiduciary duty to the lawyer’s firm may also govern a lawyer’s

conduct when exploring an association with another firm and is beyond the scope of these rules.

[14] Any information disclosed pursuant to paragraph (b)(7) may be used or further disclosed only

to the extent necessary to detect and resolve conflicts of interest. Paragraph (b)(7) does not restrict

the use of information acquired by means independent of any disclosure pursuant to paragraph

(b)(7). Paragraph (b)(7) also does not affect the disclosure of information within a law firm when

the disclosure is otherwise authorized, see comment [5], such as when a lawyer in a firm discloses

information to another lawyer in the same firm to detect and resolve conflicts of interest that could

arise in connection with undertaking a new representation.

[15] A lawyer may be ordered to reveal information relating to the representation of a client by

a court or by another tribunal or governmental entity claiming authority pursuant to other law to

compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should

assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or

that the information sought is protected against disclosure by the attorney-client privilege or other

applicable law. In the event of an adverse ruling, the lawyer must consult with the client about

the possibility of appeal to the extent required by rule 32:1.4. Unless review is sought, however,

paragraph (b)(6) permits the lawyer to comply with the court’s order.

[16] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the

disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer

should first seek to persuade the client to take suitable action to obviate the need for disclosure. In

any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably

believes necessary to accomplish the purpose. If the disclosure will be made in connection with a

judicial proceeding, the disclosure should be made in a manner that limits access to the information

to the tribunal or other persons having a need to know it and appropriate protective orders or other

arrangements should be sought by the lawyer to the fullest extent practicable.

[17] Paragraph (b) permits but does not require the disclosure of information relating to a client’s

representation to accomplish the purposes specified in paragraphs (b)(1) through (b)(6). In exercising

the discretion conferred by this rule, the lawyer may consider such factors as 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 factors that may extenuate the conduct in question. A

lawyer’s decision not to disclose as permitted by paragraph (b) does not violate this rule. Disclosure

may be required, however, by other rules. Some rules require disclosure only if such disclosure

would be permitted by paragraph (b). See rules 32:1.2(d), 32:4.1(b), 32:8.1, and 32:8.3. Rule 32:3.3,

on the other hand, requires disclosure in some circumstances regardless of whether such disclosure

is permitted by this rule. See rule 32:3.3(c).

Acting Competently to Preserve Confidentiality

[18] Paragraph (c) requires a lawyer to act competently to safeguard information relating to the

representation of a client against unauthorized access by third parties and against inadvertent or

unauthorized disclosure by the lawyer or other persons who are participating in the representation

of the client or who are subject to the lawyer’s supervision. See rules 32:1.1, 32:5.1, and 32:5.3.

The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating

to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has

made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining

the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the

information, the likelihood of disclosure if additional safeguards are not employed, the cost of

employing additional safeguards, the difficulty of implementing the safeguards, and the extent to

which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a

device or important piece of software excessively difficult to use). A client may require the lawyer to

implement special security measures not required by this rule or may give informed consent to forgo

security measures that would otherwise be required by this rule. Whether a lawyer may be required

to take additional steps to safeguard a client’s information in order to comply with other law, such

as state and federal laws that govern data privacy or that impose notification requirements upon the

loss of, or unauthorized access to, electronic information, is beyond the scope of these rules. For a

lawyer’s duties when sharing information with nonlawyers outside the lawyer’s own firm, see rule

32:5.3, comments [3]-[4].

[19] When transmitting a communication that includes information relating to the representation

of a client, the lawyer must take reasonable precautions to prevent the information from coming into

the hands of unintended recipients. This 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 confidentiality 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. Whether a lawyer may be required to take additional

steps in order to comply with other laws, such as state and federal laws that govern data privacy, is

beyond the scope of these rules.

Former Client

[20] The duty of confidentiality continues after the client-lawyer relationship has terminated. See

rule 32:1.9(c)(2). See rule 32:1.9(c)(1) for the prohibition against using such information to the

disadvantage of the former client.

Required Disclosure Adverse to Client

[21] Rule 32:1.6(c) requires a lawyer to reveal information relating to the representation of a

client to the extent the lawyer reasonably believes necessary to prevent imminent death or substantial

bodily harm. Rule 32:1.6(c) differs from rule 32:1.6(b)(1) in that rule 32:1.6(b)(1) permits, but

does not require, disclosure in situations where death or substantial bodily harm is deemed to be

reasonably certain rather than imminent. For purposes of rule 32:1.6, “reasonably certain” includes

situations where the lawyer knows or reasonably believes the harm will occur, but there is still time

for independent discovery and prevention of the harm without the lawyer’s disclosure. For purposes

of this rule, death or substantial bodily harm is “imminent” if the lawyer knows or reasonably

believes it is unlikely that the death or harm can be prevented unless the lawyer immediately

discloses the information.