ER 1.6 scares many lawyers. But if you keep one -- yes, just one -- overarching principle in mind about information relating to client representation, I doubt you'll ever have a problem with your clients, the State Bar or courts. Here's that one overarching principle:

Start with the proposition that because all information related to your client is confidential, you keep your mouth shut. Keep potential loose lips locked.

Then, and only then, you take the next step: does a rule allow or require me to disclose information?

ERs and other rules to think about:

  • ER 1.6 (the mothership of confidentiality)
  • ER 3.3 
  • ER 1.14
  • ER 8.1
  • Rule 54

A few of my favorite State Bar of Arizona ethics opinions about confidentiality:

  • Op. 05-05: What if after representation ends, you learn that your former client apparently perjured herself in a civil case and you, as a result, offered false material evidence to the tribunal? Your duty of candor to the tribunal (ER 3.3) overcomes your ethical duty of preserving the former client’s confidences (ER 1.6). You need to take reasonable remedial measures effective to undo the effect of the false evidence. This gets complicated because you no longer represent the client. You might need to involve successor counsel or, if no successor counsel, directly communicate with the court.
  • Op. 00-11: What if you receive a subpoena directing you to turn over information related to the representation of your client and the client does not authorize you to disclose? ER 1.6(d)(5) allows you to disclose a reasonable amount of information to comply with other law or a final court order, but a subpoena is not a final court order. If the client doesn't authorize disclosure, you need to challenge the subpoena.
  • Op. 93-11: You can't instigate criminal prosecution against former client whose checks for your fees bounce. As much as you might want to do this, you can't.

  • Op. 01-02: If you learn information during the course of representing an incapacitated person, a vulnerable adult, or someone who owes a fiduciary duty to such a person that is required to be reported under A.R.S. § 46-454 (the vulnerable adult statute), you may disclose that information to authorities based on ER 1.6(d)(5).

  • Op. 97-05: It's OK under ER 1.6 to allow interpreters, parents or advocates to be present during an attorney-client conversation. Whether the attorney-client privilege is affected is a question of law, however.