MRPC Rule 1.6

(a) “Confidence” refers to information protected by the client- lawyer 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.

(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:

(1) reveal a confidence or secret of a client;

(2) use a confidence or secret of a client to the disadvantage of the client; or

(3) use a confidence or secret of a client for the advantage of the lawyer or of a third

person, unless the client consents after full disclosure.

(c) A lawyer may reveal:

(1) confidences or secrets with the consent of the client or clients affected, but only after

full disclosure to them;

(2) confidences or secrets when permitted or required by these rules, or when required by

law or by court order;

(3) confidences and secrets to the extent reasonably necessary to rectify the consequences

of a client’s illegal or fraudulent act in the furtherance of which the lawyer’ s services

have been used;

(4) the intention of a client to commit a crime and the information necessary to prevent the

crime; and

(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or

the lawyer’s employees or associates against an accusation of wrongful conduct.

(d) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose

services are utilized by the lawyer from disclosing or using confidences or secrets of a

client, except that a lawyer may reveal the information allowed by paragraph (c) through an

employee.

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The lawyer is part of a judicial system charged with upholding the law. One of the lawyer’s

functions is to advise clients so that they avoid any violation of the law in the proper exercise of

their rights.

The observance of the ethical obligation of a lawyer to hold inviolate confidential information of

the client not only facilitates the full development of facts essential to proper representation of

the client, but also encourages people to seek early legal assistance.

Almost without exception, clients come to lawyers in order to determine what their rights are and

what is, in the maze of laws and regulations, deemed to be legal and correct. The common law

recognizes that the client’s confidences must be protected from disclosure. Upon the basis of

experience, lawyers know that almost all clients follow the advice given and that the law is

upheld.

A fundamental principle in the client- lawyer relationship is that the lawyer maintain

confidentiality of information relating to the representation. The client is thereby encouraged to

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

subject matter.

The principle of confidentiality is given effect in two related bodies of law, the client-lawyer

privilege (which includes the work- product doctrine) in the law of evidence and the rule of

confidentiality established in professional ethics. The client-lawyer privilege applies 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 applies to confidences and secrets as defined in the rule. A lawyer may

not disclose such information except as authorized or required by the Rules of Professional

Conduct or other law. See also Scope, ante, p M 1-18.

The requirement of maintaining confidentiality of information relating to representation applies

to government lawyers who may disagree with the policy goals that their representation is

designed to advance.

Authorized Disclosure.

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

out the representation, except to the extent that the client’s instructions or special circumstances

limit that authority. In litigation, for example, a lawyer may disclose information by admitting a

fact that cannot properly be disputed, or, in negotiation, by making a disclosure that facilitates a

satisfactory conclusion.

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, or unless the disclosure would breach a screen erected within the

firm in accordance with Rules 1.10(b), 1.11(a), or 1.12(c).

Disclosure Adverse to Client.

The confidentiality rule is subject to limited exceptions. In becoming privy to information about

a client, a lawyer may foresee that the client intends to commit a crime. To the extent a lawyer is

prohibited from making disclosure, the interests of the potential victim are sacrificed in favor of

preserving the client’s confidences even though the client’s purpose is wrongful. To the extent a

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lawyer is required or permitted to disclose a client’ s purposes, the client may be inhibited from

revealing facts which would enable the lawyer to counsel against a wrongful course of action. A

rule governing disclosure of threatened harm thus involves balancing the interests of one group

of potential victims against those of another. On the assumption that lawyers generally fulfill

their duty to advise against the commission of deliberately wrongful acts, the public is better

protected if full and open communication by the client is encouraged than if it is inhibited.

Generally speaking, information relating to the representation must be kept confidential as stated

in paragraph (b). However, when the client is or will be engaged in criminal conduct or the

integrity of the lawyer’ s own conduct is involved, the principle of confidentiality may

appropriately yield, depending on the lawyer’s knowledge about and relationship to the conduct

in question, and the seriousness of that conduct. Several situations must be distinguished.

First, the lawyer may not counsel or assist a client in conduct that is illegal or fraudulent. See

Rule 1.2(c). Similarly, a lawyer has a duty under Rule 3.3(a)(4) not to use false evidence. This

duty is essentially a special instance of the duty prescribed in Rule 1.2(c) to avoid assisting a

client in illegal or fraudulent conduct. The same is true of compliance with Rule 4.1 concerning

truthfulness of a lawyer’s own representations.

Second, the lawyer may have been innocently involved in past conduct by the client that was

criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.2(c), because to

“counsel or assist ” criminal or fraudulent conduct requires knowing that the conduct is of that

character. Even if the involvement was innocent, however, the fact remains that the lawyer’s

professional services were made the instrument of the client’s crime or fraud. The lawyer,

therefore, has a legitimate interest in being able to rectify the consequences of such conduct, and

has the professional right, although not a professional duty, to rectify the situation. Exercising

that right may require revealing information relating to the representation. Paragraph (c)(3)

gives the lawyer professional discretion to reveal such information to the extent necessary to

accomplish rectification. However, the constitutional rights of defendants in criminal cases may

limit the extent to which counsel for a defendant may correct a misrepresentation that is based on

information provided by the client. See comment to Rule 3.3.

Third, the lawyer may learn that a client intends prospective conduct that is criminal. Inaction by

the lawyer is not a violation of Rule 1.2(c), except in the limited circumstances where failure to

act constitutes assisting the client. See comment to Rule 1.2(c). However, the lawyer’s

knowledge of the client’s purpose may enable the lawyer to prevent commission of the

prospective crime. If the prospective crime is likely to result in substantial injury, the lawyer

may feel a moral obligation to take preventive action. When the threatened injury is grave, such

as homicide or serious bodily injury, a lawyer may have an obligation under tort or criminal law

to take reasonable preventive measures. Whether the lawyer’s concern is based on moral or legal

considerations, the interest in preventing the harm may be more compelling than the interest in

preserving confidentiality of information relating to the client. As stated in paragraph (c)(4), the

lawyer has professional discretion to reveal information in order to prevent a client’s criminal

act.

It is arguable that the lawyer should have a professional obligation to make a disclosure in order

to prevent homicide or serious bodily injury which the lawyer knows is intended by the client.

However, it is very difficult for a lawyer to “know” when such a heinous purpose will actually be

carried out, for the client may have a change of mind. To require disclosure when the client

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intends such an act, at the risk of professional discipline if the assessment of the client’s purpose

turns out to be wrong, would be to impose a penal risk that might interfere with the lawyer’s

resolution of an inherently difficult moral dilemma.

The lawyer’s exercise of discretion requires consideration of such factors as magnitude,

proximity, and likelihood of the contemplated wrong; 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. Where practical, the lawyer

should seek to persuade the client to take suitable action. In any case, a disclosure adverse to the

client’s interest should be no greater than the lawyer reasonably believes necessary to the

purpose. A lawyer’s decision not to make a disclosure permitted by paragraph (c) does not

violate this rule.

Where the client is an organization, the lawyer may be in doubt whether contemplated conduct

will actually be carried out by the organization. Where necessary to guide conduct in connection

with this rule, the lawyer should make an inquiry within the organization as indicated in Rule

1.13(b).

Paragraph (c)(3) does not apply where a lawyer is employed after a crime or fraud has been

committed to represent the client in matters ensuing therefrom.

Withdrawal.

If the lawyer’s services will be used by the client in materially furthering a course of criminal or

fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1).

After withdrawal the lawyer is required to refrain from making disclosure of the client’ s

confidences, except as otherwise provided in Rule 1.6. Neither this rule nor Rule 1.8(b) nor Rule

1.16(d) prevents the lawyer from giving notice of the fact of withdrawal, and the lawyer may

also withdraw or disaffirm any opinion, document, affirmation, or the like.

Dispute Concerning Lawyer’s Conduct.

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. The lawyer’s

right to respond arises when an assertion of complicity or other misconduct has been made.

Paragraph (c)(5) does not require the lawyer to await the commencement of an action or

proceeding that charges complicity or other misconduct, so that the defense may be established

by responding directly to a third party who has made such an assertion. The right to defend, of

course, applies where a proceeding has been commenced. Where practicable and not prejudicial

to the lawyer’s ability to establish the defense, the lawyer should advise the client of the third

party’s assertion and request that the client respond appropriately. In any event, disclosure

should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the

disclosure should be made in a manner which 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.

If the lawyer is charged with wrongdoing in which the client’s conduct is implicated, the rule of

confidentiality should not prevent the lawyer from defending against the charge. Such a charge

can arise in a civil, criminal, or professional disciplinary proceeding, and can be based on a

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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.

A lawyer entitled to a fee is permitted by paragraph (c)(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. As stated above, the

lawyer must make every effort practicable to avoid unnecessary disclosure of information

relating to a representation, to limit disclosure to those having the need to know it, and to obtain

protective orders or make other arrangements minimizing the risk of disclosure.

Disclosures Otherwise Required or Authorized.

The scope of the client-lawyer privilege is a question of law. If a lawyer is called as a witness to

give testimony concerning a client, absent waiver by the client, paragraph (b)(1) requires the

lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final

orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give

information about the client.

The Rules of Professional Conduct in various circumstances permit or require a lawyer to

disclose information relating to the representation. See Rules 2.2, 2.3, 3.3 and 4.1. In addition to

these provisions, a lawyer may be obligated or permitted by other provisions of law to give

information about a client. Whether another provision of law supersedes Rule 1.6 is a matter of

interpretation beyond the scope of these rules, but a presumption should exist against such a

supersession.

Former Client.

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

Rule 1.9.

Confidentiality of Information.

When transmitting a communication that contains confidential and/or privileged information

relating to the representation of a client, the lawyer should take reasonable measures and act

competently so that the confidential and/or privileged client information will not be revealed to

unintended third parties.