ABA Issues Formal Opinion on “Generally Known” Exception to Using Former-Client Information

Both the ABA Model Rules of Professional Conduct and the corresponding Louisiana Rules broadly prohibit a lawyer from revealing former-client confidences. A lawyer may do so rarely and then only when a specific exception in the rule governing existing-client confidentiality applies.

The rules, however, permit more liberal use of former-client confidences. Model Rule 1.9(c)(1) and Louisiana Rule 1.9(c)(1) permit a lawyer to use confidential information if it does no harm to a former client. Moreover, the rules permit use of such information to the disadvantage of a former client “when the information has become generally known.” See ABA Formal Op. No. 479 (Dec. 15, 2017).

But confusion exists as to just when information is “generally known.” Some lawyers believe, incorrectly, that information is “generally known” when it is a matter of public record or when it is publicly accessible. On the contrary, “the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1).” Indeed, “[i]nformation that is publicly available is not necessarily generally known.” See id. at 5.

Formal Opinion 479 attempts to clear up this confusion and to craft a “workable definition” of the generally-known standard. To this end, the opinion defines two circumstances under which information is “generally known.”

First, information is “generally known” when it is “widely recognized by members of the public in the relevant geographic area.” Id. Such wide recognition—or “public notoriety”—can result from “publicity through traditional media sources, such as newspapers, magazines, radio, or television; through publication on internet web sites; or through social media.” Id.

Second, information is “generally known” when it is “widely recognized in the former client’s industry, profession, or trade.” Such recognition can exist if the information “is announced, discussed, or identified in what reasonable members of the industry, profession, or trade would consider a leading print or online publication or other resource in the particular field. Information may be widely recognized within a former client’s industry, profession, or trade without being widely recognized by the public.” Id.