This blog expands an article published in Bench & Bar of Minnesota (October 2018), as “Confidentiality Rules in the Age of Social Media – A Historical Perspective.” This expansion adds discussion of a third value – the public interest in accurate information regarding a lawyer. This explanation also explains how Minnesota has only one more disclosure permission than the ABA Model Rules.
When, if ever, may a lawyer disclose confidential information to defend, outside a legal proceeding, against a client’s public accusation of serious misconduct? “Never” and “almost never” are the answers proposed, respectively, by the Lawyers Board and the Minnesota State Bar Association. The MSBA answer has taken the form of a petition filed in the Minnesota Supreme Court, seeking amendment of the confidentiality rule, Rule 1.6, R. Prof. Conduct. The Board opposes the petition insofar as it creates a disclosure permission. The rise of electronic social media (ESM) and online lawyer rating services have made this question pressing, because clients now have the means to trash or praise their lawyers before a large audience.
These answers are important to protection of three fundamental values – confidentiality, a lawyer’s reputation, and the public’s interest in accurate information about lawyers.
Confidentiality is an ancient and core value of the legal profession. Confidentiality is protected by the discipline rules, albeit with numerous exceptions. The exceptions give weight to other values, such as the truth, life itself, protection from crime and fraud, the administration of justice, and a lawyer’s right to make certain claims and defenses.[i]
The second value addressed by the confidentiality rules is a lawyer’s reputation.
Who steals my purse steals trash; ’tis something, nothing;
’twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.[ii]
Procedural rules reflect the importance of lawyers’ reputations. Public charges of lawyer misconduct may be made only after probable cause has been found by a Board panel or a specified equivalent.[iii]
The third value addressed by the confidentiality rules and other Rules of Professional Conduct is the public’s interest in accurate information about lawyers. Broadly public interests are involved when a lawyer is a candidate or nominee for office, or a potential appointee to a position such as class counsel. Individual interests are involved when members of the public consider whether to retain one lawyer or another for their important legal affairs.
The Rule 7 series of the Rules of Professional Conduct are drafted to ensure reasonable accuracy in lawyers’ marketing communications to potential clients. These rules show the importance to potential clients of accurate information about lawyers. If lawyers are not permitted to make disclosures to rebut false attacks by former clients, potential clients will not have accurate information.
Recent events show how important accurate information is for choosing lawyers for the judiciary or other public office. For example, if a lawyer who was being considered for a supreme court or attorney general was accused by a former client of serious misconduct, and the lawyer had probative exculpatory evidence from the representation, there would be a strong public interest in permitting disclosure of the information. It is sometimes argued that any expansion of permissions to disclose confidential information will impair public confidence in the profession, but there are instances where the public would clearly wish to have confidential information.
The proposed amendments suggest several questions. What will clients and the public think? Will they notice or care? Do exceptions to a general rule of confidentiality foster distrust of lawyers? Or do clients and the public accept certain balances of confidentiality and other values? A summary of the Minnesota history of lawyer confidentiality regulation helps answer these questions.
The Canons and the Common Law Prior to 1970. Before 1955, the Minnesota attorney confidentiality rules were not strict for a simple reason – there were no formal Minnesota legal ethics rules![iv] In 1908, the ABA adopted the model Canons of Professional Ethics. Until 1955 the Minnesota Supreme Court cited the Canons as “weighty,” but declined to adopt them. Prior to 1955, discipline in Minnesota was based on common law principles and applications of very general standards, such as those found in the attorney’s oath for bar admission. The oath promised “fidelity” to the client and fiduciary duty included confidentiality. Minnesota professional responsibility precedents were few and confidentiality was a rare subject.
ABA Canon 37 provided, “If a lawyer is accused by his client, he is not precluded from disclosing the truth in respect to the accusation.” When Minnesota finally adopted ethics rules, a client’s “accusation” remained the trigger for a lawyer’s disclosure, in self-defense. There was little law or bar opinion on the key issue of whether an “accusation” had to be in a legal “proceeding,” or whether, instead, a public statement would qualify.
In 1953, Henry Drinker, for decades the leading national commentator on legal ethics, addressed the issues of client accusations and confidentiality. Drinker stated, first, “The lawyer may make such disclosures as are necessary to protect himself against false accusations, . ..” Drinker also stated that a lawyer who is, “defamed by a former client whom he is suing for slander may, in order to protect his good name, advise other clients in the same trade of the true facts.”[v] Drinker cited ABA and state bar opinions for these positions.
Citing ABA Opinion 250, Drinker also said that Canon 37’s express exceptions to confidentiality were “not intended to exclude other well-recognized exceptions.” Three exceptions cited by Drinker show that confidentiality could be outweighed by other social values, to an extent greater than permitted by today’s rules.[vi] (1) Where a lawyer represents the government of a foreign country that is at war with the U.S., the lawyer should reveal to the U.S. government confidential information, including subversive activities, of the foreign country, “the common defense transcending Canon 37.” (2) “A lawyer may disclose the whereabouts of a client jumping bail.” (3) Most surprisingly, where a male client introduced a woman to a lawyer for legal advice, and the woman decided to marry the male client, “the lawyer is bound to advise her of various prior sexual offenses on the client’s part.”[vii]
1970 – 2005: The Code, the Rules, the ABA and the Minnesota Supreme Court. In 1970, Minnesota adopted the ABA Code of Professional Responsibility. The Code replaced the Canons and remained in effect until 1985. The Code allowed a lawyer to disclose non-privileged information, whose disclosure would likely not be “embarrassing” or “detrimental to the client.”[ii] The Code continued the Canons’ permission to disclose as necessary to defend against a client’s accusations of wrongdoing.
In 1983, the ABA adopted the Model Rules of Professional Conduct. For the next twenty years, the Model Rules tightly – indeed too tightly – restricted disclosure of information. The 1983 Model Rules expanded the general non-disclosure provision, so that even harmless, non-privileged information could not be “revealed.” Instead, all “information relating to the representation of a client” was confidential, with few exceptions.
In 1985, the MSBA and Board petitioned the Minnesota Supreme Court to adopt the Model Rules. The Court generally adopted the Model Rules, but declined to adopt Model Rule 1.6, governing confidentiality. Instead, the Court carried forward the less restrictive Code confidentiality provision that allowed disclosure of harmless, non-privileged information. Time shows the wisdom of the Court’s action and of subsequent Minnesota confidentiality rule amendments. The ABA’s exaltation of confidentiality above almost all other values proved imprudent and nearly destroyed the profession’s regulation of confidentiality.
In 1990, the Minnesota Supreme Court adopted the “Lundberg Amendment,” allowing (but not requiring) a lawyer to disclose confidential information to rectify the consequences of a fraud perpetrated by the client with the unwitting help of the lawyer.[viii] The ABA repeatedly defeated efforts to adopt versions of the Lundberg Amendment. Again, time showed the wisdom of the Court’s action.
In 2003, the ABA was forced to adopt a version of the Lundberg Amendment. Rampant fraud had caused the dot.com collapse in corporate America. Judges, commentators, and the public asked, “Where were the lawyers?” The answer was that lawyers in most states were forbidden by the Model Rules to expose client fraud. Congress enacted the Sarbanes-Oxley Act, to prevent further fraud and to take over some governance of lawyer conduct. Finally, and much-belatedly, the ABA formed an emergency Task Force on Corporate Responsibility. With unwonted speed, the Task Force found what Minnesota had determined long before: “that where the client abuses the client-lawyer relationship by using the lawyer’s services to commit a crime or fraud that results in substantial economic harm to another, the policy of protecting confidentiality is outweighed by the policy of protecting the interests of society and the professional integrity of the lawyer.”[ix] Model Rule 1.6 was amended accordingly.
The ABA’s unbalanced exaltation of confidentiality appeared in other ways. For example, the 1983 Model Rules allowed disclosure to prevent an “imminent” death. A lawyer could not disclose a client’s discharge of toxic, lethal chemicals if deaths would be caused in a slow, agonizing way. In 2003, ABA Model Rule 1.6(b) changed the disclosure trigger to allow disclosure to prevent, “reasonably certain death or substantial bodily harm.”
2005 Amendments and Current Rule 1.6. In 2005, on a petition supported by the MSBA, the Board, and OLPR, the Court adopted current Minnesota Rule 1.6. Minnesota again departed from the Model Rules in important ways. Most importantly, Minnesota retained the permission to disclose harmless, non-privileged information.[x] The ABA, unwisely, continues to forbid a lawyer to “reveal” even non-privileged information that will not embarrass or harm the client and is already “generally known.”
Two hypotheticals will show that absurd applications of the ABA principles are easily conjured. First, suppose that while Bush v. Gore was pending, attorneys Theodore Olson and David Boies were asked on a TV show, “Who represents Bush and who represents Gore?” If Olson and Boies said, “We can’t reveal that,” the audience would laugh. Second, suppose that in a small town a law firm has represented the local bank for many decades. Over 99% of the town residents know of the representation. A business executive new to the town asks a lawyer in the firm who represents the bank.
According to the ABA, if the lawyers have not obtained informed consent for disclosure from their clients, they could not answer the questions above by identifying their clients. The ABA has recently re-affirmed this position. ABA Formal Opinion 480 (2018) restates, (1) “Even client identity is protected under Model Rule 1.6.” and (2) “Rule 1.6 does not provide an exception for information that is “generally known” or contained in a “public record.” The ABA seems not to consider how odd it is to take the position that a lawyer would be impermissibly “revealing” what is already nearly universally known.
The leading commentary on the Model Rules notes regarding Model Rule 1.6, “the overinclusion of too much material within the universe of protected confidential information can have awkward consequences.” [xi] The ABA and OLPR would make ethics offenders of all the attorneys whose websites identify client cases and transactions that show prior experience in fields of practice, unless the clients had all given informed consent to disclosures – no matter how well known the information and no matter how harmless the disclosure.[xii]
In 2005, the Minnesota ethics rules were amended in numerous ways, in response to amendments of the Model Rules. The 2005 Minnesota confidentiality amendments increased the number of disclosure permissions. However, although Minnesota has eleven enumerated disclosure permissions in Rule 1.6(b) and Model Rule 1.6(b) has only seven disclosure permissions, in fact Minnesota has only one more permission than the Model Rule. Two of Minnesota’s enumerated permissions (to disclose on client consent and where impliedly authorized by the client) are found in Model Rule 1.6(a). The very limited permission to disclose information to report another lawyer’s misconduct is found in Model Rule and Minnesota Rule 8.3, but Minnesota Rule 1.6(b)(10) also addresses the issue. Minnesota does not actual have four more disclosure permissions. The only Minnesota disclosure permission that does not have an ABA counterpart is Rule 1.6(b)(2), allowing disclosure of harmless, non-privileged information.
Ambiguities in the “Controversy Clause.” From 1955 to 2005 the Minnesota rule allowed a lawyer to disclose confidential information in response to an “accusation of wrongful conduct.”[xiii] In 2005, a much more complicated rule was adopted, in Rule 1.6(b)(8). The rule was drafted before the advent of ESM. The rule carries forward a long recognized permission to disclose, “to establish a defense” in “proceedings,” such as malpractice or discipline matters. Rule 1.6(b)(8) created a new permission to disclose when, “the lawyer reasonably believes the disclosure is necessary to establish a claim or defense on behalf of the lawyer in an actual or potential controversy between the lawyer and the client.” Rule 1.6(b)(8).[xiv] This “controversy clause” is ambiguous in two important ways.
The first ambiguity is whether a “controversy” may arise outside a “proceeding.” If so, the rule allows many disclosures. OLPR has given contradictory interpretations. One OLPR Deputy Director defined “controversy” as a “public debate,” that does not require a proceeding. Another Deputy Director indicates that “controversy” does require a “legal proceeding.”[xv] The ambiguous terminology and OLPR’s inconsistency have made it difficult or impossible to enforce the rule.
A second ambiguity in Rule 1.6(b)(8) is whether the phrase, “establish a defense” requires a “proceeding.” The language of the phrase itself may suggest a proceeding. However, Comment 8 to Rule 1.6 expressly states that a “defense may be established by responding directly to a third party” who has “asserted” the lawyer’s wrongdoing – no actual proceeding required, although a threatened proceeding is contemplated.
In 2016, the Lawyers Board attempted to resolve these ambiguities by issuing Opinion 24. The opinion categorically declared that Rule 1.6(b)(8) does not permit lawyers to disclose client information in self-defense outside a proceeding. But the Board’s authority to issue opinions does not extend to resolving ambiguities in the rules. The Board’s very limited warrant is to state the “plain meaning” of rules.[xvi] Moreover, although Board opinions almost always include explanatory comments and are distributed for public comment before issuance, Op. 24 did neither of these things.
The ambiguities in the “controversy clause,” the OLPR’s self-contradictory interpretations of the clause, Op. 24’s lack of authority or explanation, and the rise of ESM have created the need to amend Rule 1.6(b)(8).
MSBA and Board Positions. Turning to the MSBA’s proposed amendments to Rule 1.6(b)(8), and the Board’s opposition, should lawyers ever be able to disclose confidential information in the court of public opinion, to defend against a client’s accusation?
The Lawyers Board agrees that the present “controversy clause” should be deleted altogether. However, the Board would not substitute, as the MSBA would, a limited permission to disclosure in self-defense outside a legal proceeding. When a client publicly accuses a lawyer, the Board would permit disclosure only in self-defense in an “actual or potential proceeding.” For the Board, it does not matter how serious, specific, and injurious the client’s accusation is, nor does it matter that the client discloses or purports to disclose confidential information.
The MSBA proposal, with one narrow but important exception, would prohibit or permit the same disclosures as the Board. The MSBA exception would permit disclosure, “to respond to a client’s specific and public accusation, made outside a legal proceeding, of misconduct by the lawyer, where the accusation (a) raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects and (b) includes the client’s disclosure of information . . ..” The MSBA also proposes a comment, stating that the rule, “does not permit disclosure to respond to a client’s petty or vague critique, or general opinion, of a lawyer, such as those that are common in online rating services.”
The MSBA and Board agree that garden-variety ESM critiques should not give lawyers permission to disclose confidential information in response. The MSBA and Board also agree that the scope of disclosures should be limited – as other Rule 1.6(b) disclosures are -- to the extent “the lawyer reasonably believes is necessary” to respond, rectify, prevent, etc. Lawyers have been disciplined for disclosing more information than necessary. [xvii]
It should also be noted that both the MSBA and Board positions would continue the lawyer’s permission to make disclosures in proceedings necessary to establish the lawyer’s claim of defamation per se against the client. If the Court adopts the Board’s position, the lawyer could still self-defend by suing the client for defamation and making necessary disclosures. With increasing online filing of litigation and increasing availability of remote access, the information necessary to counter the client’s accusations will be ever more likely to become public through a proceeding.
Confidentiality is a core value of the legal profession. History shows that confidentiality is best honored by combining a general mandate of silence with careful, limited balances with other values, including avoiding fraud and saving life itself. The public thinks best of the legal profession when confidentiality is balanced with important social values. The public has important interests in accurate information about lawyers and lawyers have great interests in their reputations. The Minnesota Supreme Court has wisely calibrated these balances in the past and will consider doing so again, in considering the challenges of confidentiality, ESM, and lawyer self-defense.
[i] Rules 1.6, 3.3, MInn. R. Prof. Conduct.
[ii] William Shakespeare, Othello
[iii] Rules 9, 10, R. Law. Prof. Resp.
[iv] One early case describes the alleged violations of an attorney’s oath, taken for bar admission, and a related statute as being the sole basis for disciplinary charges. State Bd. of Exam’rs in Law v. Hart, 104 Minn. 88, 112, 116 N.W. 212, 214 (1908). The oath then and now does not mention confidentiality, although “fidelity” should be taken to include confidentiality. Of course the common law included confidentiality doctrines in such areas as fiduciary duty and the attorney-client privilege.
[v] Henry S. Drinker, Legal Ethics at 139 (1953).
[vi] Id. at 131-139.
[vii] Regarding this remarkable opinion, Drinker cited a bar opinion, N.Y. County 270. Drinker also commented, “His [the male client’s] introducing her would apparently waive the confidence.” Id. at 134, n. 35. Drinker also stated, “Lawyers for whose opinions I have great respect have questioned this ruling. Nevertheless, it seems to me to be sound.” Id. at 95, n. 10.
[ii] Disclosure of privileged information without consent or implied authority recently resulted in a private admonition, affirmed by the Supreme Court, even where the disclosure was arguably harmless. In re Panel File No. 41310, 899 N.W.2d 821 (Minn. 2017).
[viii] The amendment was advocated in Charles E. Lundberg, On Ethics and Expediency: The ABA’s Dubious Vote on Disclosure of Client Fraud, Hennepin Law., Mar./Apr. 1983, at 13. The MSBA, Lawyers Board, and Minnesota Supreme Court saw the wisdom of the proposal.
[ix] Art Garwin, A LEGISLATIVE HISTORY: THE DEVELOPMENT OF THE ABA MODEL RULES OF PROFESSIONAL CONDUCT, 1982-2013 (ABA 2013).
[x] Disclosure of harmless but privileged information warrants a private admonition. In re Panel File No. 41310, 899 N.W.2d 821 (Minn. 2017).
[xi] Martin Cole, Comparing Discipline: Apples to Oranges? Bench & B. of Minn., Oct.2006; 1 Geoffrey C. Hazard Jr., W. William Hodes & Peter R. Jarvis, The Law Of Lawyering § 9.15, at 9-60 (3d ed. Supp. 2004).
[xii] Cassie B. Hanson, Making Sure Your Firm’s Website Complies with the Rules, Minn. Law., Sept. 3, 2007.
[xiii] More recently, NYSBA Op. 1032 (2014) noted three definitions of “accusation” - ranging from “formal charge,” to “charge,” to “something more than just casual venting.” Op. 1032 concluded that “accusation” did not include an “informal” critique that did not purpose to disclose confidential information.
[xiv] Although the “controversy clause” was new to Minnesota Rule 1.6 in 2005, the clause was part of Model Rule 1.6 continuously from 1983 when the Model Rules were first adopted.
[xv] Patrick R. Burns, Client Confidentiality and Client Criticisms, Bench & B. of Minn., Dec. 2016; Jan. 19, 2018, Memo of Timothy M. Burke to the Lawyers Board. Both documents are posted on the Board/OLPR website.
[xvi] In re Panel File No. 99-42, 621 N.W.2d 240, 241 (Minn. 2001). Moreover, Op. 24 lacks any persuasive authority because it does not include the explanatory comments that are customary in Board opinions. In re Panel File No. 41310, 899 N.W.2d 821 (Minn. 2017).
[xvii] See, e.g. In re Fuller, 621 N.W.2d 460 (Minn. 2001).