It’s been a great lunch, with old friends from the bench and bar, and a few toasts are being made. Your cellphone rings. You learn that the Minnesota Supreme Court just issued an opinion reversing lower courts and deciding every issue in your client’s favor. Your office tried to let your client know, but she’s incommunicado for a week. May you share the good news at lunch? Or do the confidentiality rules prohibit disclosure without your client’s informed consent?
To take the issue one step further, suppose that your recent appellate victory occurred just before your appearance in District Court, where the case would provide precedent helpful to another of your clients. May you cite the case without client consent?
ABA Formal Opinion 480 (2018) takes the categorical position, “The plain language of Model Rule 1.6 dictates that information relating to the representation, even information that is provided in a public judicial proceeding, remains protected by Model Rule 1.6(a).” At the 2018 ABA Professional Responsibility Conference, a member of the ABA Standing Committee on Ethics and Professional Responsibility informed an audience that a lawyer who had won a case in the Ninth Circuit could not post news of the victory on his firm’s website without client consent. Leading ethics authorities in the audience expressed incredulity.
The ABA’s prohibitions appear obviously mistaken. How did the ABA back itself into this corner? There are five answers.1
First, in 1983, when the ABA adopted the Model Rules of Professional Conduct, it abandoned the exception to confidentiality for harmless disclosures. ABA Model Rule 1.6(a) and its Minnesota counterpart both provide, “Except when permitted under paragraph (b), a lawyer shall not knowingly reveal information relating to the representation of a client.” 2 However, Minnesota has carried forward an exception to confidentiality from the Code of Professional Responsibility that antedated the rules. A Minnesota lawyer may disclose non-privileged information where, “the client has not requested that the information be held inviolate, and the lawyer reasonably believes the disclosure would not be embarrassing or likely detrimental to the client.”3
Second, the Minnesota position overlaps with “stock-in-trade,” a common law doctrine, ignored by Op. 480. The Restatement of the Law Governing Lawyers describes this doctrine, “Confidential client information does not include what a lawyer learns about the law, legal institutions such as courts and administrative agencies, and similar public matters in the course of representing clients. Such information is part of the general fund of information available to the lawyer.” § 59 cmt. e. The Restatement is widely respected, frequently cited by the Minnesota Supreme Court, and regarded as “authoritative” by the Office of Lawyers Professional Responsibility.4 Op. 480 does not explain why it takes a position that is directly at odds with the Restatement.
Third, Opinion 480 has made a mistake of logic. From the truism that “all humans are mortal,” it does not follow that “all mortals are human.” Similarly, from the fact that “not all client information in public records may be disclosed,” it does not follow that, “all client information in public records is confidential.”
In Opinions 479 and 480, the ABA restated its view that the mere fact that information is available in court or other public records does not mean that the information is “generally known” or that a lawyer may “reveal” the information. However, in Op. 480, the ABA expanded that principle to hold that all court records, no matter how well known, are subject to confidentiality prohibitions.
The following statements in Opinion 480 show this expansive application of confidentiality. “Significantly, information about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality under Model Rule 1.6.” Op. 480 explains, “The duty of confidentiality extends generally to information related to a representation whatever its source and without regard to the fact that others may be aware of or have access to such knowledge.”5 There is no great leap from these statements to the position that a victory in the Ninth Circuit is confidential information, which every lawyer except the victor may report, cite, and discuss.
Fourth, the error in Op. 480 arises from the ABA’s chronic failure to interpret and apply the most important term in Rule 1.6(a), viz. “reveal.” Although Op. 480 states that “the plain language of Model Rule 1.6(a)” dictates that court records are confidential, the opinion does not even attempt to define or interpret the plain term “reveal.” How would the prohibition against revealing apply to published court decisions? Suppose that in July 2018 a Minnesota lawyer said to colleagues, “I am about to reveal something that is very important.” After a pregnant pause, the lawyer continued, “I hereby reveal a 2017 decision of the Minnesota Supreme Court.” The colleagues would wonder if, somehow, this decision had never been published or, if it had, whether the lawyer was boastful or just odd.
According to the American Heritage Dictionary, a source often cited by the Minnesota Supreme Court, to “reveal” is, “To make known (something concealed or unknown): She revealed that she was pregnant.” It is true that some court records are generally “unknown.” On the other hand, published appellate decisions and some other court records are not generally “unknown” in the legal community. Among the unknown, some records can readily be found, others not so.6
That which is already “generally known” cannot – by definition – be “revealed.” ABA Formal Opinion 479 acknowledged this axiom, but Op. 480 ignores it. Postulating great media coverage of a large corporate merger, Op. 479 concluded, “then the lawyer may tell the world. After all, most of the world already knows.”7 Op. 479 also recognized that “most of the world” need not mean the public at large, but could mean the relevant trade or profession. To determine what may be revealed, Op. 479 took account of how many people in the relevant group “already know,” but Op. 480 opines that a lawyer may not reveal, “without regard to the fact that others may be aware. . ..” Is permission to “tell” determined with regard to who already knows (Op. 479) or without regard (Op. 480)? Op. 479 has the “plain meaning” and definition of “reveal” on its side.
Fifth, the ABA has paid insufficient attention to the overarching rubric for interpreting the Rules of Professional Conduct. “The Rules of Professional Conduct are rules of reason.” What is “reasonable” is determinable by “the conduct of a reasonably prudent and competent lawyer.”8 The rules use “reasonable” and cognates several hundred times. However, the ABA has not paid heed to what prudent and competent lawyers do.
Law firm website have lawyer resumes, firm practice area descriptions, “What’s New” headlines, etc. These sources list the firm’s and lawyers most significant cases, deals, etc. Were informed client consents obtained for most of these listings? It seems unlikely. And what about a victorious lawyer eager to share news at lunch or duty-bound to cite a new case in court? Do such lawyers violate Rule 1.6(a) by revealing high-profile cases? The ABA would have us believe so.
At least some court records should not be regarded as confidential. Which ones? There are strong candidates – published court decisions, easily found records, and records whose disclosure would be harmless. Opinion 480 apparently rejects all these candidates, purportedly based on the plain meaning of Rule 1.6(a). Opinion 480 is far from persuasive. It should be withdrawn and revised, to take account of the meaning of the key word “reveal,” the opinions of the Restatement and others, and the practice of good lawyers.
- The criticisms here as to Opinion 480 overlap with criticisms of ABA Opinion 479, in William J. Wernz, New ABA Opinion 479 – Using Former Clients’ Confidential Information, Minn. Law., Feb. 19, 2018.
- As ABA Opinion 479 states, analysis of permitted disclosures is the same for former and current clients, “Lawyers thus have the same duties not to reveal former client confidences under Model Rule 1.9(c)(2) as they have with regard to current clients under Model Rule 6.”
- In the Code, this harmless information was included in the term “secret.” That term was deleted in the 2005 amendments to Minnesota Rule 1.6(b), but the essence of the term was carried forward.
- In re Panel File No. 41755, 2018 WL 2325379 (Minn. May 23, 2018); Martin Cole, Comparing Discipline: Apples to Oranges? Bench & B. of Minn., Oct.
- A third general statement to the same effect is in the concluding sentence of Op. 480: “Lawyers who blog or engage in other public commentary may not reveal information relating to a representation that is protected by Rule 6(a), including information contained in a public record, unless disclosure is authorized under the Model Rules.”
- In Minnesota, it should be noted that a disciplinary charge against a lawyer, for revealing his client’s criminal records, was dismissed on the grounds that public records are not confidential. This determination was not appealed. Findings of Fact, Conclusions of Law, and Memorandum of Honorable John C. Lindstrom at 19, In re Fuller, 621 W.2d 460 (May 23, 2000). On the other hand, disclosure of privileged information, without client consent, resulted in discipline. In re Panel File No. 41310, 899 N.W.2d 821 (Minn. 2017).
- ABA Op. 479 generally addressed when client information may be “used” to the disadvantage of a former client, but here the opinion expressly addressed what a lawyer may “tell the world,” i.e. disclose, indeed disclose publicly.
- SCOPE ; Rule 1.0(j).