Legal Ethics

I. IMPLIEDLY AUTHORIZED DISCLOSURES
A. “Impliedly Authorized.” The Rules and comments have fifteen references to lawyers being “impliedly authorized” to take certain actions and to disclose client information. For example, a lawyer may disclose client information when “the lawyer reasonably believes the disclosure is impliedly authorized in order to carry out the representation.” Rule 1.6(b)(3). This rule implies a two-part question: When do lawyers “reasonably believe” that they are “impliedly authorized” to disclose confidential client information?
 
B. “Reasonably Believe”–The Good Lawyer Standard. “Reasonably Believe” is defined, in two steps, as an actual belief of “a reasonably prudent and competent lawyer,” based on the conduct of such lawyers. Rule 1.0(i), (j). The standard is based both on subjective belief and on the objective (though perhaps difficult to determine) standard of what good lawyers do. (The ABA Model Rule has only the “impliedly authorized” standard and does not refer to what the lawyer reasonably believes. ABA Model Rule 1.6(a).)

C. “Impliedly Authorized”–A Difficult Question. Determining when authority is implied is inherently difficult. The task is made more difficult by a wide divergence among authorities. On one hand, the Minnesota Supreme Court and the Restatement have given more permissive answers to these questions than many would expect. On the other hand, in recent years, the Office of Lawyers Professional Responsibility (OLPR) has given some answers that are more restrictive than, not only the Court and the Restatement, but the current comments to the Rules and a formal opinion of the American Bar Association. OLPR’s position is not extreme. It was consistent with a comment to Rule 1.6, but that comment was repealed in 2005.

D. Most Recent OLPR Position. Most recently, OLPR has opined that a lawyer who seeks assistance from a lawyer outside the firm, without the client’s informed consent, will “in all likelihood” violate Rule 1.6, by sharing “some or all of the client’s file” information with the other lawyer. Martin A. Cole, New Focus on Referral Fees, BENCH & B. OF MINN., Dec. 2014. The article advises that the disclosure would not be “impliedly authorized,” because “hiring an attorney from outside the lawyer’s firm should not be considered such a necessity.”

E. “Necessity” is not the Standard. The standard invoked by OLPR–“the lawyer reasonably believes the disclosure is necessary”–is not, however, the governing standard. “Necessary” is not used in relation to the impliedly authorized disclosure provision, Rule 1.6(b)(3). The “necessary” standard is found only in Rule 1.6(b)(4)-(10).

F. Preview. OLPR recognizes the following authorities as “authoritative.” However, OLPR takes more restrictive positions than the authorities.

1. Two Minnesota Supreme Court cases have found disclosures even of privileged information to be “appropriate,” and within the broad discretion of a lawyer, even when the disclosures prove harmful to the client.

2. The Restatement of the Law Governing Lawyers, citing the Minnesota cases, impliedly authorizes disclosures to “lawyers in other firms.” 

3. A comment to the Rules regards “appropriate” disclosures as being impliedly authorized, absent contrary client direction or “special circumstances.” 

4. ABA Formal Opinion 98-411 allows certain disclosures of confidential information to outside lawyers, as impliedly authorized.

G. Impliedly Authorized Actions. Implied authorization pertains broadly to actions of various types, not just disclosures. “With respect to the means by which the client’s objectives are to be pursued, the lawyer . . . may take such action as is impliedly authorized to carry out the representation.” Rule 1.2 cmt. 1. The comment echoes a Minnesota Supreme Court case, “It is axiomatic that an attorney enjoys broad authority in dealing with the procedural aspects of his client’s cause.” Sprader v. Mueller, 265 Minn. 111, 117, 121 N.W.2d 176, 180 (1963). Consultation with counsel outside the firm is impliedly authorized in some circumstances. Retention of counsel outside the firm is impliedly authorized in more limited circumstances.

H. Disclosures Authorized Even Without Implied or Express Authority. Rule 1.6(b)(2) authorizes disclosure–even for purposes unrelated to the representation–of what might be called harmless information. More specifically, disclosure of non-privileged information is permitted, when the client has not instructed otherwise, and the disclosure is not apt to be “embarrassing or likely detrimental to the client.” Rule 1.6(b)(2). When OLPR claims that disclosure of even “some” file information is “in all likelihood” apt to violate Rule 1.6, OLPR fails to take account of the considerable volume of information in many files that falls within Rule 1.6(b)(2).

I. Best Practices. Even where a disclosure appears impliedly authorized, good lawyers may well seek client consent, or at least make advance disclosure, before disclosing sensitive client information. Case law and the Restatement make Rule 1.6(b)(3) difficult to enforce in borderline situations, but good client relations and results will often involve good communications. 

II. THE “WHEN APPROPRIATE” AND “REASONABLE” STANDARDS 
A. Very Broad Standards for Implied Authority to Disclose. A Minnesota Supreme Court case and a comment to Rule 1.6 both allow disclosure of confidential information “when appropriate.” In turn, “appropriate” and “reasonable” are defined as those disclosures that the court or good lawyers recognize as such. 

B. Touchstone–An Elusive Sense of Professional Propriety. The Minnesota Supreme Court has held that, “within limits which do not offend our sense of professional propriety (however elusive this definition of the rule may prove to be), an attorney has the right to use privileged matter for legitimate bargaining purposes. In so doing, he may waive the privilege without committing any breach of his ethical obligation to respect his client’s confidences.” Sprader v. Mueller, 265 Minn. 111, 117, 121 N.W.2d 176, 180 (1963). Similarly, disclosures are authorized by a comment “when appropriate in carrying out the representation.” Rule 1.6 cmt. 5. 

C. Four Observations. First, the standard “appropriate” is question-begging–what’s permissible (or proper) is what’s appropriate, i.e. proper. Second, the standard gives considerable discretion to lawyers and considerable deference to prevailing customs. Third, the standard is based in the court’s own possibly elusive “sense of professional propriety.” Fourth, “appropriate” is echoed in the “reasonably believes” standard of Rule 1.6(b)(3), which incorporates the sense of professional propriety of lawyers. 

D. A Presumption of Authority to Disclose. The breadth of the “impliedly authorized” standard is confirmed by a comment. “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.” Rule 1.6 cmt. 5. This comment suggests that disclosures are ordinarily appropriate. The comment provides that “appropriate” disclosures are “impliedly authorized,” absent contrary client instruction or “special circumstances.” The comment contrasts with OLPR’s position that such disclosures are “in all likelihood” not impliedly authorized. However, OLPR states that lawyers may rely on the comments. Timothy M. Burke, Comparing Services Can be Dicey, Minn. Law., July 3, 2006, at 5.

E. Disclosures Approved by Supreme Court. In Sprader and in State v. Schneider, 402 N.W.2d 779 (Minn. 1987), the court found that lawyers’ disclosures were impliedly authorized, even though they involved privileged information and the disclosures waived privilege and proved harmful to the clients. 

F. Disclosures Approved by the Restatement. OLPR regards the Restatement of the Law Governing lawyers as “authoritative,” and frequently cites the Restatement. Martin A. Cole, Comparing Discipline: Apples to Oranges?, BENCH & B. OF MINN., Oct. 2006, at 14, 15. However, the Restatement is substantially more permissive than OLPR (and perhaps somewhat more permissive than most lawyers would be) regarding impliedly authorized disclosures. The Restatement states, generally, “the lawyer may not use or disclose confidential client information. . .if there is a reasonable prospect that doing so will adversely affect a material interest of the client or if the client has instructed the lawyer not to use or disclose such information.” Restatement (Third) of the Law Governing Lawyers § 60 (2000). The Restatement states, more specifically, “A lawyer also may disclose information to independent contractors who assist in the representation, such as investigators, lawyers in other firms, prospective expert witnesses, and public courier companies and photocopy shops, to the extent reasonably appropriate in the client’s behalf. . ..” Id., cmt. f., citation omitted. As authority for these positions, the Restatement cites Sprader and Schneider, discussed above. Id., Reporter’s Note. The Restatement does not distinguish between lawyers in other firms who are consulted for special purposes from lawyers who are actually retained.

G. Prior Supporting Comment Repealed in 2005. Until 2005, a comment supported OLPR’s view that disclosures to outside counsel were not impliedly authorized. “Thus, in the absence of the client’s consent after consultation, a lawyer should not . . .seek counsel from another lawyer if there is a reasonable possibility that the client’s identity or confidences or secrets would be revealed to that lawyer.” Minn. R. Prof. Conduct. 1.6 cmt.—1991 (2004). However, no current comment takes this position. The Lawyers Board has recently petitioned the Minnesota Supreme Court to “acknowledge” proposed amendments to comments, but it has not sought restoration of this comment.

H. ABA View. Even before the above comment was repealed, the ABA interpreted Rule 1.6, “to allow disclosure of client information to lawyers outside the firm when the consulting lawyer reasonably believes the disclosure will further the representation by obtaining the consulted lawyer’s experience or expertise for the benefit of the consulting lawyer’s client.” ABA Comm. on Ethics & Prof ’l Responsibility, Formal Op. 98-411 (1998). The ABA also found limits to such disclosures, e.g. not waiving privilege or causing harm. A disclosure, to outside counsel, of information protected by privilege or work product would not normally waive that protection.

I. OLPR’s Difficult Burden. For OLPR to prove a Rule 1.6(b)(3) violation, OLPR would have to show that a lawyer clearly acted outside standards of propriety and good lawyering, by failing to recognize “special circumstances” or by failing to heed client instructions. These standards would either have to be obvious or would have to be established by expert evidence.

III. PRIOR OLPR POSITIONS
A. Overview. OLPR has referred several times to impliedly authorized disclosures, but has never given Rule 1.6(b)(3) focal attention. Consideration that is systematic and takes account of the authorities cited above would be instructive.

B. 2012–An Earlier OLPR Error. An OLPR article described Rules 1.6(b)(2) and (3) as seldom-used permissions to disclose. “Most lawyers opt not to make disclosures [under Rules 1.6(b)(2), (3)] in almost all instances, . . . .” Martin A. Cole, Disclosing Confidential Information, Bench & B. of Minn., Apr. 2012 at 14. On the contrary, disclosures are frequently made pursuant to these rules. Rule 1.6(b)(2) broadly authorizes a lawyer’s disclosure of harmless information, whether for the benefit of the client or other purposes. 

C. 2009–What About Medical Records? A plaintiff’s personal injury attorney was admonished for sharing plaintiff ’s medical records with an attorney in another firm “to determine whether that attorney wishes to take over the representation.” Martin A. Cole, Summary of Admonitions, BENCH & B. OF MINN., Apr. 2009, at 18, 19. The article explained, “In particular, the attorney was not ‘impliedly authorized’ under Rule 1.6(b)(3) to make such disclosures, as the attorney argued.” Id. It appears, however, that disclosure of medical records to a lawyer in another firm could be impliedly authorized, depending on the circumstances. Not all medical records are highly sensitive, e.g. records regarding an injury to the pinky finger, already disclosed to opposing counsel, could be disclosed, for a second opinion, pursuant to Rule 1.6(b)(2) and (3), in most circumstances. Disclosure even of more intimate records, to obtain a second opinion from more experienced counsel, could be impliedly authorized. 

D. 2004 – OLPR Recognizes Broad Authority to Disclose in Some Circumstances. OLPR itself has recognized broad implicit authority to disclose in some circumstances. In general, a lawyer has implied authority to disclose decedent’s testamentary information where doing so would “promote the client’s estate plan, forestall litigation, preserve assets, and further family understanding of the decedent’s intention.” Kenneth L. Jorgensen, Advisory Opinion Samplings, BENCH & B. OF MINN., Oct. 2004, at 14, 15 (footnote omitted). Other special situations also impliedly authorize disclosures, e.g. Rule 1.14(c) (disabled clients) and Rule 2.3 cmt. 1 (evaluations for third party use) both cite implied authority to disclose.

IV. CONCLUSION
A. Evolving Standards. Over the course of many decades, professional paternalism has declined and client involvement in decision-making has increased. Clients in recent decades have come to expect more communication from lawyers, and more client involvement in decision-making. However, where client and lawyer have not expressly agreed on the lawyer’s authority, the exact extent of implied authority may be difficult to specify. 

B. Variable Standards. A lawyer’s implied authority to take certain actions and make certain disclosures often will vary with the client and the retainer agreement. Many organizational clients’ “Outside Counsel Guidelines” closely restrict counsel’s choices. Such restrictions are “client’s instructions”. Rule 1.6 cmt. 5. Some insurers seek even to constrain defense counsel’s discretion whether to conduct certain kinds of discovery. (Some such restrictions may create “materially limited” representation conflicts. Rule 1.7(a)(2).) 

C. Two Vignettes. I recall an in-house corporate lawyer who, in reviewing a draft brief I submitted, also reviewed my draft service letter, and suggested a change from “Very Truly Yours” to “Sincerely.” (“Very Truly Yours” survived.) I would not have dreamed of consulting with another law firm without the in-house lawyer’s express permission. On the other hand, I recall a colleague who informed clients of every fact and consulted as to every decision, even small tactical ones. A client, feeling burdened with such involvement, exclaimed, “Just decide! That’s what I pay you for!” 

D. Broad Standards. It may be that the disciplinary rules and case law to some extent lag the evolutionary trend. In any event, the leading authority–recognized as such by OLPR–on contemporary legal standards, the Restatement, continues to grant lawyers broad authority to disclose client information. In doing so, the Restatement cites Minnesota Supreme Court cases. The rules and comments broadly defer to the standards of the legal community–“appropriate,” and “reasonable”–in defining “impliedly authorized.” Moreover, the Minnesota Supreme Court cases offer examples of “appropriate” disclosure that accord lawyers far more discretion than OLPR would. Until Sprader and Schneider are superseded, and the Restatement no longer recognizes these as leading cases, OLPR’s current restrictive interpretation of “impliedly authorized” will conflict with governing authorities.

E. Exposition Desirable. In all, the Rules and comments frequently refer to lawyers’ implied authority to take certain actions, disclose certain information, etc. OLPR has given the subject of implied authority only glancing attention. OLPR has provided excellent educational materials on many subjects. A substantial exposition on implied authority would be a welcome addition.