(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).

(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;

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

(7) to detect and resolve conflicts on interest between lawyers in different firms, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

(c) 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.

Background

The Louisiana Supreme Court adopted this rule on January 20, 2004, and it became effective on March 1, 2004. In 2015, the court amended the rule to permit disclosures to screen conflicts, and to require the exercise of reasonable care to prevent unauthorized disclosures.

This rule is identical to ABA Model Rule of Professional Conduct 1.6 (2003), except for the following: The Louisiana rule does not contain ABA Model Rule paragraph (b)(7) (which allows disclosures “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”).

In 2002, the ABA substantially expanded the grounds for permissive disclosure under Model Rule 1.6. While strongly reaffirming the legal profession’s commitment to the core value of confidentiality, the ABA recognized the importance of preserving human life and the integrity of the lawyer’s role within the legal system through permitting more disclosures of otherwise confidential information. See ABA Ethics 2000 Comm’n Revision Notes to Model Rule 1.6 (2002).

In 2015, the Louisiana Supreme Court adopted a new paragraph, denominated as Louisiana Rule 1.6(b)(7), permitting a lawyer to disclose confidential information to the extent the lawyer “reasonably believes necessary”: “(7) to detect and resolve conflicts of interest between lawyers in different firms, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.” In adopting this amendment, the court made the Louisiana rule similar to the corresponding ABA Model Rule. The ABA adopted similar language because sometimes a lawyer may need to disclose potential conflicts when the lawyer is considering associating with a new firm, or when law firms are considering a merger. See Model Rules of Prof’l Conduct R. 1.6(c), cmt. 13. In reality, Louisiana lawyers changing or joining firms have long made these disclosures without this express authorization.

In 2015, the court adopted a new paragraph, denominated as Rule 1.6(c), that provides as follows: “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.” This is a default rule; a client may demand that a lawyer exercise more—or permit a lawyer to exercise less—than ordinary “reasonable care” of the client’s information. In adopting this amendment, the court made the Louisiana rule identical to the corresponding ABA Model Rule.

Disclosures to Prevent Death or Bodily Harm

The ABA expanded the exception for client crimes threatening imminent death or substantial bodily harm in part, to make the Model Rule consistent with Section 66 of the American Law Institute’s Restatement of the Law Governing Lawyers. The Model Rule replaces “imminent” with “reasonably certain,” to include a present and substantial threat that a person will suffer such injury at a later date, as in some instances involving toxic torts. See id. See ABA Model Rule 1.6, cmt. 6.

Disclosures of Client Crimes and Frauds

In August 2003, the ABA House of Delegates adopted the paragraphs (b)(2) and (b)(3), provisions it had previously rejected. These provisions permit a lawyer to reveal client confidences to prevent the client from committing a serious crime or fraud that the lawyer unwittingly assisted. The ABA believed that the use of the lawyer’s services for such improper ends constitutes a serious abuse of the client-lawyer relationship. Moreover, the ABA believed that the client’s entitlement to the protection of the Rule must be balanced against the prevention of the injury that would otherwise be suffered and the interest of the lawyer in being able to prevent the misuse of the lawyer’s services.

Disclosures to Secure Legal Advice

In 2002, the ABA adopted paragraph (b)(4) to permit a lawyer to reveal confidential information in order to secure legal advice regarding his own obligations. In most instances, the ABA presumed disclosing information to secure such advice is impliedly authorized. Nevertheless, in order to clarify that such disclosures are proper even when not impliedly authorized, the ABA revised Model Rule 1.6 to make such disclosures explicitly permissible. See ABA Model Rule 1.6(b).

Disclosures to Comply with Law or Court Orders

Prior to 2002, the Model Rules did not address whether a lawyer is permitted or required to disclose information when such disclosure is required by other law or a court order. For this reason, the ABA added paragraph (b)(6) to explicitly permit, but not to require, disclosure in order for a lawyer to comply with law or court orders. See id.

Avoiding Inadvertent Disclosures

A mere inadvertent disclosure does not subject a lawyer to discipline under this Rule 1.6(c) if the lawyer has exercised reasonable care to protect client information and data. According to the comment to the corresponding ABA model rule, some factors to consider in evaluating the reasonableness of a lawyer’s efforts include:

  • The sensitivity and importance of the information disclosed.
  • The likelihood of disclosure if more protective measures are not employed.
  • The cost and difficulty of employing additional safeguards.
  • The extent to which the safeguards “adversely affect the lawyer’s ability to represent clients (g., by making a device or important piece of software excessively difficult to use).”

See Model Rules of Prof’l Conduct r. 1.6, cmt. 18.

To comply with the obligations imposed by this rule, a lawyer who digitally stores and communicates confidential information generally need not implement über-security measures like encryption or multi-factor authentication. Nor is a lawyer prohibited from using means of communication when the lawyer has a reasonable expectation of privacy, such as when using a public Wi-Fi network for confidential email.

Comments to ABA Model Rule 1.6

Generally

[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 1.18 for the lawyer’s duties with respect to information provided to the lawyer by a prospective client, Rule 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 1.8(b) and 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 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 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.

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 imminently 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 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 1.2(d). See also Rule 1.16 with respect to the lawyer’s obligation or right to withdraw from the representation of the client in such circumstances, and Rule 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 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 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 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.

Detections 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 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 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 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule. See Rule 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 1.1, 5.1 and 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 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 law, 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 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.

Annotations

Scope of Confidentiality Obligation

A lawyer’s duty of confidentiality is significantly broader than many lawyers understand. Because this rule prohibits a lawyer from revealing “information relating to representation of a client,” it is not limited merely to matters communicated in confidence by the client. See Model Rules of Prof’l Conduct Rule 1.6 cmt. 5. Thus, this rule prohibits disclosure of confidential information from any source, including from third parties and from documents prepared by third parties. When in doubt, however, the lawyer should seek client consent to disclose the information in question.

A lawyer must preserve the confidences of prospective clients, current clients, and former clients. “This obligation continues even after termination of the attorney-client relationship. This duty of confidentiality is broader than the evidentiary attorney-client privilege and applies not only to matters communicated to the attorney in confidence by the client, but to all information relating to the representation, whatever its source.” State v. Tensley, 955 So. 2d 227, 242 (La. Ct. App. 2d Cir. 2007).

A lawyer has no duty to keep confidential matters concerning a client that are not related to the representation of the client. Specifically, Rule 1.6 does not disqualify a lawyer from being a witness; and under the rule a lawyer may reveal information unrelated to the representation of a client. Bernard v. Lott, 610 So. 2d 1117, 1118 (La. Ct. App. 5th Cir. 1992) (holding that the lawyer was not barred by Rule 1.6 from testifying on matters not related to the representation of the client; namely, the client’s consumption of alcohol and drugs and the client’s ability to attend parties and date).

When Confidentiality Obligation Attaches

A lawyer’s duty of confidentiality attaches even prior to the formal commencement of a lawyer-client relationship. Therefore, a lawyer must maintain the confidentiality of information learned during the initial consultation with a prospective client. See La. Rules of Prof’l Conduct R. 1.18 (2004) (addressing duties owed to prospective clients); Restatement (Third) of the Law Governing Lawyers § 59 cmt. c (2000); Id. at § 15(1)(a) and cmt. c; see ABA Comm’n on Ethics and Prof’l Responsibility, Formal Op. 90-358 (1990).

Protecting Confidential Information

A lawyer must take reasonable efforts to protect the confidentiality of information relating to their clients. Although there is some difference of opinion among commentators, the ABA Committee on Ethics and Professional Responsibility has opined that it is reasonable for a lawyer to transmit confidential client information using unencrypted Internet e-mail. See ABA Comm’n on Ethics and Prof’l Responsibility, Formal Op. 99-413 (1999). Whether it is reasonable for a lawyer to conduct confidential conversations using cordless phones, analog cellular phones, digital cellular phones or wireless paging/messaging is less clear. Id. However, considering that all persons now have a federally-protected right of privacy when communicating through any type of phone, see 18 U.S.C. §§ 2510-2511, an argument may be made that it is reasonable for a lawyer to exchange confidential information through such devices.

Disclosure of Confidential Information

A lawyer is impliedly authorized to reveal confidential information in order to carry out the representation. Indeed, a lawyer routinely discloses confidential information in responding to discovery requests, attempting to negotiate settlements, eliciting testimony from witnesses, or failing to object to evidence offered by opposing counsel, among other circumstances. In so doing, a lawyer sometimes makes tactical decisions to disclose unfavorable information. Such disclosures should not subject the lawyer to discipline if, at the time of the disclosure, the lawyer reasonably believed that making the disclosure would advance the interests of the client. See Restatement (Third) of the Law Governing Lawyers § 61 cmt. d (2000); Model Rules of Prof’l Conduct,  Preamble and Scope (“[D]isciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question.”)

The Louisiana Rules of Professional Conduct expressly permit disclosure only of generally-known information relating to former clients. Compare La. Rules of Prof’l Conduct R. 1.6(a) (2004) with Model Rules of Prof’l Conduct R. 1.9(c)(1) (permitting disclosure of information relating to a former client “when the information has become generally known”). Nevertheless, a lawyer arguably should be permitted to disclose information relating to current clients that has become generally known to the public. See Restatement (Third) of the Law Governing Lawyers § 59 (2000) (stating that confidential client information does not include “information that is generally known”). Note, however, that merely because information has become known to one or more third persons does not mean that it has become “generally known” to the public. Id. at cmt. d. When information has become “generally known,” is often difficult to discern. For example, the recordation of a document in the public records may waive any claim that the recorded information remains confidential, although as a practical matter few people peruse mortgage and conveyance records. See In re Sellers, 669 So. 2d 1204, 1206 (La. 1996).

When Disclosure is Required by Other Rules and Laws

This rule permits a lawyer to disclose confidential information when such disclosure is required by other rules or laws. For example, a lawyer may disclose otherwise confidential information that is responsive to lawful discovery requests and subpoenas. Likewise, a lawyer must disclose confidential information when necessary to avoid assisting the client in a crime or fraud or to remedy past client perjury. See La. Rules of Prof’l Conduct R. 3.3(a) (2004). Finally, a lawyer must disclose confidential information when required by law or court order. See Restatement (Third) of the Law Governing Lawyers § 63 (2000). For example, a prosecutor must disclose exculpatory evidence to a criminal defendant irrespective that such information may otherwise be confidential. See Brady v. Maryland, 373 U.S. 83 (1963) (holding that the failure to disclose evidence material to guilt violated the Due Process Clause). A lawyer compelled to disclose confidential information should take reasonably appropriate steps to assert in good faith that the requested information is protected. Moreover, the lawyer should limit the scope of disclosure to that which is required. See Restatement (Third) of the Law Governing Lawyers § 63 (2000).

Lawyer’s Personal Use of Confidential Information

Under general mandate (agency) principles, a lawyer owes a fiduciary duty of loyalty to the client. As a fiduciary, a lawyer may not personally profit from the use of confidential information in a manner that is detrimental to the client. See, e.g., La. Rules of Prof’l Conduct R. 1.8(b) (2004); Defcon, Inc. v. Webb, 687 So. 2d 639, 643 (La. Ct. App. 2d Cir. 1997) (outlining the elements of a claim against a fiduciary for misappropriation of confidential information); Woodward v. Steed, 680 So. 2d 1320, 1326 (La. Ct. App. 2d Cir. 1996); see also Neal v. Daniels, 47 So. 2d 44, 45 (La. 1950) (agent may not “speculate for his gain in the subject-matter of his employment”); see generally Restatement (Third) of the Law Governing Lawyers § 60(2) (2000) (“A lawyer who uses confidential information of a client for the lawyer’s pecuniary gain other than in the practice of law must account to the client for any profits made.”); Restatement (Second) of Agency § 395 (stating that an agent must not use confidential information “on his own account”).

Whether a lawyer may personally profit from the use of confidential information when it does not harm a client is less clear. Under Louisiana Rule of Professional Conduct 1.8(b), a lawyer is prohibited only from using confidential information “to the disadvantage of the client.” See La. Rules of Prof’l Conduct R. 1.8(b) (2004). But under Louisiana mandate law, a mandatary must account to his or her principal for all profits or advantages obtained in the course of the mandate. See La. Civ. Code art. 3004; id. at art. 3005 cmt. b (“In the absence of contrary agreement, the mandatary is not entitled to apply to his own use the money or other property of the principal.”); Noe v. Roussel, 310 So. 2d 806, 818-19 (La. 1975); Neal, 47 So.2d at 44; Foreman v. Pelican Stores, 21 So. 2d 64 (La. Ct. App. 2d Cir. 1944); see also Restatement (Third) of the Law Governing Lawyers § 60(2) (2000) (requiring a lawyer to account to client for profits made through the use of confidential information). How a Louisiana court would resolve this issue is uncertain.

Applicability to Nonlawyer Support Personnel

Rule 1.6 obviously is not enforceable against a nonlawyer. However, a lawyer may be subject to discipline for disclosures of confidential information by a nonlawyer with whom the lawyer works. Therefore, a lawyer must take reasonable measures to ensure that support personnel protect confidential information. Reasonable measures may include devising policies and practices concerning confidential information, communicating these policies and practices to those with whom the lawyer works, and then enforcing these directives. Whether a lawyer’s efforts in this regard are reasonable turns on such factors as “the duties of the agent or other person, the extent to which disclosure would adversely affect the client, the extent of prior training and experience of the person, the existence of other assurances such as adequate supervision by senior employees, and the customs and reputation of independent contractors.” Restatement (Third) of the Law Governing Lawyers § 60 cmt. d (2000).

Relationship to Attorney-Client Privilege

Rule 1.6 does not establish an evidentiary privilege against disclosure of confidential information; rather, it establishes a broader ethical duty that is enforced primarily through the lawyer disciplinary system. Thus, a lawyer cannot use this rule as a basis for refusing to divulge confidential information when the lawyer otherwise would be compelled to do so by law or court order. See Model Rule of Prof’l Conduct R. 1.6 cmt. 3. Articles 506 through 509 of the Louisiana Code of Evidence address the “lawyer-client” evidentiary privilege. See La. Code Evid. arts. 506-509; see also MCGovern v. Moore, No. 5:13-CV-1353, 2013 WL 5781315 (W.D. La. Oct. 25, 2013) (holding that, where attorney-client privilege does not apply, professional duty of confidentiality under Rule 1.6 cannot be used to suppress evidence).

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving the failure to preserve client confidences: disbarment, when the lawyer reveals confidential information with the intent to benefit himself or another, and the disclosure causes injury or potential injury to the client; suspension, when the lawyer knowingly reveals confidential information, and the disclosure causes injury or potential injury to the client; reprimand, when the lawyer negligently reveals confidential information and the disclosure causes injury or potential injury to the client; and, admonition, when the lawyer negligently reveals confidential information, and the disclosure causes little or no actual or potential injury to the client. See ABA Stds. for Imposing Lawyer Sanctions stds. 4.21-4.24 (1992).

Notes

This page was updated on January 18, 2017.