NCSB Subcommittee Discussion Of Disclosure Of Client Information Continues

November 16, 2021   |   Eben Rawls
Eben Rawls is N.C. State Bar Councilor for the 26th District. The subcommittee of the State Bar Ethics Committee studying Proposed 2020 FEO 6 will meet Nov. 18. The meeting will be broadcast on the State Bar’s YouTube channel.

Recently, the State Bar received what seemed a simple inquiry: Can a lawyer appear on a podcast and discuss a highly publicized case he recently won in the North Carolina Supreme Court? The foresightful lawyer asked his client if she objected. She did object and asked the lawyer not to disclose any information about her case. The lawyer requested a Formal Ethics Opinion from the State Bar. A subcommittee of the Bar Ethics Committee was tasked with examining the question.

The mistaken conflation of “confidentiality of information” and “confidential information” became apparent early in the subcommittee meetings. Rule 1.6 of the Rules of Professional Conduct (RPC) is titled Confidentiality of Information. “Confidential Information” is defined in the Terminology section of the RPC, Rule 1.0. Rule 1.6 prohibits disclosure by an attorney of any information from any source related to a client’s representation. Two exceptions permit disclosure: 1) obtaining the client’s consent and 2) using a hypothetical. The subcommittee was tasked with the narrow question framed by the lawyer’s specific facts light of Rule 1.6’s clear language.

The subcommittee examined precedent from other states and the American Bar Association. Ten states had modified the language in Rule 1.6 to relax the blanket proscription of an attorney disclosing any information from any source. The subcommittee reviewed an opinion by a Virginia court that allowed a First Amendment challenge to the blanket proscription. The subcommittee agreed First Amendment issues were not part of its task. Nor was its task, at that time, to consider modifying Rule 1.6.

Based on the unambiguous language of Rule 1.6 and the facts presented by the attorney, the subcommittee, by consensus, authored Proposed 2020 FEO 6. The subcommittee consensus was that Rule 1.6 was designed to protect the client. The rule makes clear that any information an attorney gathers in the course of representation is the client’s information, not the attorney’s. All subcommittee members were aware of potential difficulties and consequences the proposed FEO presented. The subcommittee presented the proposed opinion to full Ethics Committee, which voted to publish it and ask for comment.

Lively Debate and Discussion

The Ethics Committee received a blizzard of comments. Many conflated “confidentiality of information” with “confidential information.” Many were thoughtful and reflective. Many expressed the logical disconnect between another person or lawyer in court being able to discuss what transpired in court, but the attorney representing a client could not disclose any information from any source, including public record information. All the comments raised concerns about not being able to discuss cases with colleagues, not being able to present at CLE events even using generic research from a prior client, and other important issues.

The Ethics Committee sent the matter back to the subcommittee with the new task of exploring possible modifications or changes to the RPC to permit an attorney to disclose information in certain circumstances.

The subcommittee began to examine the 10 states that had modified Rule 1.6. Each has slightly different variations, but all generally carved out exceptions for attorneys for information that is “generally known” or contained in the “public record,” provided the information is not embarrassing or detrimental to the client. The subcommittee drafted five possible alternative modifications to the RPC. After consideration, the subcommittee decided that if any changes were to be recommended, the most appropriate change should be in terminology and the definition of “confidential information.” The proposed change to the definition of “confidential information” would specifically exclude information that was generally known or contained in the public record. However, a subcommittee member asked if the client should have a “veto” over her lawyer’s disclosure of information from whatever source. The consensus was that a client should have veto power because the lawyer stands in a different position vis-à-vis the client than any other source of information. The consensus was also that disclosing information over a client’s objection would undermine the public’s trust in a lawyer’s duty of loyalty to the client. (Rule 1.7)

Any RPC definition change also needed to address embarrassing and detrimental information. What might not seem embarrassing to the disclosing attorney could be embarrassing to the client, once again suggesting the client should have a veto. A client having a veto would seem to necessitate the client’s informed consent, bringing the issues back to the plain meaning and intent of Rule 1.6. In a vote whether to leave Rule 1.6 unchanged — and thus, leave the original 2020 FEO 6 unchanged —, the subcommittee split evenly. In addition, members who voted to modify the RPC and permit disclosure in some situations split over whether “generally known” or part of the “public record” should be the exception allowing disclosure. Subcommittee members agreed that defining those phrases with sufficient clarity would be difficult.

The subcommittee, evenly split, presented its results to the full Ethics Committee at the quarterly State Bar meeting in October 2021. The full committee engaged in lively debate and discussion of the issues for the better part of a morning, finally deciding to send it back to the subcommittee for more consideration.

The next subcommittee meeting will be on Nov. 18, 2021 at 1 p.m. I expect the subcommittee will look closely at Rule 1.9, which sets out an attorney’s duties to former clients (Rule 1.6 applies to clients whose matters are open, active, pending, or otherwise unresolved). While Rule 1.9 does not permit disclosure of information, it does allow “use” of certain information that is generally known and obtained by an attorney during the representation. “Use” in this context would be such things as preparing a cross examination or constructing a theory of a case. There may be some modifications to Rule 1.9 that will address the many concerns raised by the comments to the proposed 2020 FEO 6.

A Personal Take

Finally, I would like to offer my personal opinion about the present status of this issue. This is not the opinion or position of the State Bar. The Rules of Professional Conduct are rules of reason. There is consensus on that issue. Lawyers are always careful with the information they obtain in the course of representing clients. But lawyers have always sought advice and counsel from other lawyers and mentors during the course of any representation. Brainstorming and consulting other attorneys is beneficial to the client, and this long-standing beneficial practice should not stop as this issue gets resolved. Also, lawyers have a long tradition of sharing their experience at CLEs so other lawyers can gain from their knowledge and experience. This too is beneficial to the clients, the public, and the profession. In my opinion, this should not stop either as this question is resolved. Rules of reason respect long-established, long-respected beneficial practices. As everyone knows, information harvested in the course of representation and confidential information is different than privileged information. Privileged information should never be disclosed, under any circumstances, without fully informed consent of the client. In the meantime, if lawyers are concerned about Rule 1.6, they can always seek consent from the client or discuss cases in hypotheticals. Amy Richardson, a member of the subcommittee, has a clause in her retainer agreement that addresses the issue of consent to disclose information in certain situations. I am optimistic that a middle way can be forged that balances the interests of the client, the public, and great lawyers of NCAJ who represent people every day.

This is a summary of the many meetings and discussions by the State Bar Ethics Committee and its subcommittee. This summary does not capture the in-depth discussions, the hard work, and the research by committee members examining this issue. Thanks to Amy Richardson, Bill Pittman, Dionne Fortner, Ellen Murphy, Todd Brown and Colin Willoughby. Special thanks to Suzanne Lever with the State Bar whose excellent work has guided the subcommittee.