Stay on track, get back on track

Stay on track, get back on track

Update: No Changes to Confidentiality Rule

The Arizona Supreme Court has rejected a proposal to narrow ER 1.6(a)'s definition of "confidentiality." 

I wrote about this earlier this month [see "What Did You Talk About at Dinner Last Night?] but to refresh your memory: Last year, the Supreme Court convened a committee to look at a variety of lawyer-related rules. The court adopted most of the committee's recommendations but left one proposal -- revising ER 1.6 -- undecided.

The committee proposed revising ER 1.6(a) to redefine “confidentiality” to mean, in general, information either (1) truly confidential, as that word is generally thought of, or (2) even if not confidential, of such a kind that disclosure would harm the client’s interests. This revision would have opened the door to lawyers being able to disclose -- without client permission -- information out in the public domain.

The Court apparently was interested enough in the proposal to ask its staff attorneys to draft an alternative that would keep ER 1.6's current broad umbrella and not redefine "confidentiality" but allow lawyers to disclose information "generally known." What information would be considered "generally known" wasn't defined.

The Court's Attorney Regulation Advisory Committee (ARC) opposed both proposals. [Disclosure: I'm an attorney member of ARC and helped to draft the documents conveying this opposition.] Among ARC's objections was that ER 1.6 "says what it says, regardless whether, as the rule-change petition argues, it 'appears to be honored more in the breach.' Weakening client confidentiality because some lawyers do not abide by it is no justification. We believe the proper approach is to educate lawyers and make them more aware, not to lower the standard."

We don't know why the Court, at its December 15, 2015, rules conference, decided against amending ER 1.6. So we abide by ER 1.6 as currently written.

It's important to know that ER 1.6 means -- as ARC said in its opposition -- what it says: it protects "information relating to the representation." All information relating to the representation, including information out there in the public domain. And there's no exception for lawyers to use "information relating to the representation" for their own marketing purposes.

If you want to disclose information -- and ER 1.6 doesn't already authorize you to do so -- you need to get informed consent from your client or former client. And then abide by the client or former client's answer.

When I've told lawyers this, some have responded with something like: "But if I ask, my client may not want me to disclose."


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