Rule 1.6. Confidentiality of information.

(a)  A licensed paralegal practitioner shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b)  A licensed paralegal practitioner may reveal information relating to the representation of a client to the extent the licensed paralegal practitioner reasonably believes necessary:

(b)(1) to prevent reasonably certain death or substantial bodily harm;

(b)(2) to prevent the client from committing a crime or fraud that is reasonably certain

to result in substantial injury to the financial interest or property of another and in

furtherance of which the client has used the licensed paralegal practitioner’s services;

(b)(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the licensed paralegal practitioner’s services;

(b)(4) to secure legal advice about the licensed paralegal practitioner’s compliance with these Rules;

(b)(5) to establish a claim or defense on behalf of the licensed paralegal practitioner in a controversy between the licensed paralegal practitioner and the client, to establish a

defense to a criminal charge or civil claim against the licensed paralegal practitioner based upon conduct in which the client was involved, or to respond to allegations in any

proceeding concerning the licensed paralegal practitioner’s representation of the client;

(b)(6) to comply with other law or a court order; or

(b)(7) to detect and resolve conflicts of interest arising from the licensed paralegal practitioner’s change of employment or from changes in the composition or ownership of a
firm, but only if the revealed information would not compromise the licensed paralegal
practitioner ― client privilege or otherwise prejudice the client.

(c)  A licensed paralegal practitioner shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Comment
[1] This Rule governs the disclosure by a licensed paralegal practitioner of information

relating to the representation of a client during the licensed paralegal practitioner’s

representation of the client. See Rule 1.18 for the licensed paralegal practitioner’s duties
with respect to information provided to the licensed paralegal practitioner by a prospective
client, Rule 1.9(c)(2) for the licensed paralegal practitioner’s duty not to reveal information
relating to the licensed paralegal practitioner’s prior representation of a former client and
Rules 1.8(b) and 1.9(c)(1) for the licensed paralegal practitioner’s duties with respect to
the use of such information to the disadvantage of clients and former clients.

[2] A fundamental principle in the licensed paralegal practitioner-client relationship is

that, in the absence of the client’s informed consent, the licensed paralegal practitioner

must not reveal information relating to the representation. See Rule 1.0(f) for the definition

of informed consent. This contributes to the trust that is the hallmark of the client-licensed paralegal practitioner relationship.

[3] The principle of licensed paralegal practitioner-client confidentiality is given effect

by related bodies of law including the licensed paralegal practitioner-client privilege, the

work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work product doctrine apply in judicial and other proceedings

in which a licensed paralegal practitioner may be called as a witness or otherwise required

to produce evidence concerning a client. The rule of licensed paralegal practitioner-client confidentiality applies in situations other than those where evidence is sought from the

licensed paralegal practitioner through compulsion of law. The confidentiality rule, for

example, applies not only to matters communicated in confidence by the client but also to

all information relating to the representation, whatever its source. A licensed paralegal practitioner may not disclose such information except as authorized or required by the

Licensed Paralegal Practitioner Rules of Professional Conduct or other law. See also Scope.

[4] Paragraph (a) prohibits a licensed paralegal practitioner from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a

licensed paralegal practitioner that do not in themselves reveal protected information but

could reasonably lead to the discovery of such information by a third person. A licensed paralegal practitioner’s use of a hypothetical to discuss issues relating to the

representation is permissible so long as there is no reasonable likelihood that the listener

will be able to ascertain the identity of the client or the situation involved.

Authorized Disclosure

[5] Except to the extent that the client’s instructions or special circumstances limit that authority, a licensed paralegal practitioner is impliedly authorized to make disclosures

about a client when appropriate in carrying out the representation. In some situations, for example, a licensed paralegal practitioner may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory
conclusion to a matter. Licensed paralegal practitioners in a firm may, in the course of the
firm's practice, disclose to each other information relating to a client of the firm, unless the
client has instructed that particular information be confined to specified licensed paralegal
practitioners.

Disclosure Adverse to Client

[6] Although the public interest is usually best served by a strict rule requiring licensed
paralegal practitioners to preserve the confidentiality of information relating to the
representation of their clients, the confidentiality rule is subject to limited exceptions.
Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily
harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there
is a present and substantial threat that a person will suffer such harm at a later date if the licensed paralegal practitioner fails to take action necessary to eliminate the threat.

[7] Paragraph (b)(2) is a limited exception to the rule of confidentiality that permits the licensed paralegal practitioner to reveal information to the extent necessary to enable

affected persons or appropriate authorities to prevent the client from committing a crime

or fraud, as defined in Rule 1.0(e), that is reasonably certain to result in substantial injury

to the financial or property interests of another and in furtherance of which the client has

used or is using the licensed paralegal practitioner’s services. Such a serious abuse of the

client-licensed paralegal practitioner relationship by the client forfeits the protection of

this Rule. The client can, of course, prevent such disclosure by refraining from the wrongful conduct. Although paragraph (b)(2) does not require the licensed paralegal practitioner to

reveal the client’s misconduct, the licensed paralegal practitioner may not counsel or assist

the client in conduct the licensed paralegal practitioner knows is criminal or fraudulent.

See Rule 1.2(d). See also Rule 1.16 with respect to the licensed paralegal practitioner’s obligation or right to withdraw from the representation of the client in such circumstances.

[8] Paragraph (b)(3) addresses the situation in which the licensed paralegal

practitioner does not learn of the client’s crime or fraud until after it has been

consummated. Although the client no longer has the option of preventing disclosure by

refraining from the wrongful conduct, there will be situations in which the loss suffered by

the affected person can be prevented, rectified or mitigated. In such situations, the licensed
paralegal practitioner may disclose information relating to the representation to the extent necessary to enable the affected persons to prevent or mitigate reasonably certain losses or

to attempt to recoup their losses.

[9] A licensed paralegal practitioner’s confidentiality obligations do not preclude a licensed paralegal practitioner from securing confidential legal advice about the licensed paralegal practitioner’s personal responsibility to comply with these Rules. In most
situations, disclosing information to secure such advice will be impliedly authorized for the licensed paralegal practitioner to carry out the representation. Even when the disclosure is
not impliedly authorized, paragraph (b)(4) permits such disclosure because of the
importance of a licensed paralegal practitioner’s compliance with the Licensed Paralegal
Practitioner Rules of Professional Conduct.

[10] Where a legal claim or disciplinary charge alleges complicity of the licensed
paralegal practitioner in a client’s conduct or other misconduct of the licensed paralegal practitioner involving representation of the client, the licensed paralegal practitioner may
respond to the extent the licensed paralegal practitioner reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or
other proceeding and can be based on a wrong allegedly committed by the licensed
paralegal practitioner against the client or on a wrong alleged by a third person, for
example, a person claiming to have been defrauded by the licensed paralegal practitioner
and client acting together. The licensed paralegal practitioner’s right to respond arises
when an assertion of such complicity has been made. Paragraph (b)(5) does not require the licensed paralegal practitioner to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a
third party who has made such an assertion. The right to defend also applies, of course,
where a proceeding has been commenced.

[11] A licensed paralegal practitioner entitled to a fee is permitted by paragraph (b)(5)
to prove the services rendered in an action to collect it. This aspect of the rule expresses
the principle that the beneficiary of a fiduciary relationship may not exploit it to the
detriment of the fiduciary.

[12] Other law may require that a licensed paralegal practitioner disclose information
about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the
scope of these Rules. When disclosure of information relating to the representation appears
to be required by other law, the licensed paralegal practitioner must discuss the matter
with the client to the extent required by Rule 1.4. If, however, the other law supersedes this
Rule and requires disclosure, paragraph (b)(6) permits the licensed paralegal practitioner
to make such disclosures as are necessary to comply with the law.

Detection of Conflicts of lnterest

[13] Paragraph (b)(7) recognizes that licensed paralegal practitioners in different firms
may need to disclose limited information to each other to detect and resolve conflicts of
interest, such as when a licensed paralegal practitioner is considering an association with
another firm, two or more firms are considering a merger, or a licensed paralegal
practitioner is considering the purchase of a licensed paralegal practice. See Rule 1.17,
Comment [7]. Under these circumstances, licensed paralegal practitioners and law firms
are permitted to disclose limited information, but only once substantive discussions
regarding the new relationship have occurred. Any such disclosure should ordinarily
include no more than the identity of the persons and entities involved in a matter, a brief
summary of the general issues involved, and information about whether the matter has
terminated. Even this limited information, however, should be disclosed only to the extent reasonably necessary to detect and resolve conflicts of interest that might arise from the
possible new relationship. Moreover, the disclosure of any information is prohibited if it
would compromise the licensed paralegal practitioner-client privilege or otherwise
prejudice the client (e.g., the fact that a person has consulted a licensed paralegal
practitioner about the possibility of divorce before the person's intentions are known to
the person's spouse). Under those circumstances, paragraph (a) prohibits disclosure unless
the client or former client gives informed consent. A licensed paralegal practitioner's
fiduciary duty to the licensed paralegal practitioner's firm may also govern a licensed
paralegal practitioner's conduct when exploring an association with another firm and is
beyond the scope of these Rules.

[14] Any information disclosed pursuant to paragraph (b)(7) may be used or further disclosed only to the extent necessary to detect and resolve conflicts of interest. Paragraph (b)(7) does not restrict the use of information acquired by means independent to any
disclosure pursuant to paragraph (b)(7). Paragraph (b)(7) also does not affect the
disclosure of information within a law firm when the disclosure is otherwise authorized,
see Comment [5], such as when a licensed paralegal practitioner in a firm discloses
information to another licensed paralegal practitioner in the same firm to detect and
resolve conflicts of interest that could arise in connection with undertaking a new
representation.

[15] A licensed paralegal practitioner may be ordered to reveal information relating to
the representation of a client by a court or by another tribunal or governmental entity
claiming authority pursuant to other law to compel the disclosure. Absent informed
consent of the client to do otherwise, the licensed paralegal practitioner should assert on
behalf of the client all nonfrivolous claims that the order is not authorized by other law or
that the information sought is protected against disclosure by the attorney-client privilege
or other applicable law. In the event of an adverse ruling, the licensed paralegal
practitioner must consult with the client about the availability of appeal and refer the client
to an attorney to the extent required by Rule 1.4. Unless review is sought, however,
paragraph (b)(6) permits the licensed paralegal practitioner to comply with the court’s
order.

[16] Paragraph (b) permits disclosure only to the extent the licensed paralegal
practitioner reasonably believes the disclosure is necessary to accomplish one of the
purposes specified. Where practicable, the licensed paralegal practitioner should first seek
to persuade the client to take suitable action to obviate the need for disclosure. In any case,
a disclosure adverse to the client’s interest should be no greater than the licensed paralegal practitioner reasonably believes necessary to accomplish the purpose. If the disclosure will
be made in connection with a judicial proceeding, the disclosure should be made in a
manner that limits access to the information to the tribunal or other persons having a need
to know it and appropriate protective orders or other arrangements should be sought by
the licensed paralegal practitioner to the fullest extent practicable.

[17] Paragraph (b) permits but does not require the disclosure of information relating
to a client’s representation to accomplish the purposes specified in paragraphs (b)(1)
through (b)(7). In exercising the discretion conferred by this Rule, the licensed paralegal practitioner may consider such factors as the nature of the licensed paralegal practitioner’s relationship with the client and with those who might be injured by the client, the licensed paralegal practitioner’s own involvement in the transaction and factors that may extenuate
the conduct in question. A licensed paralegal practitioner’s decision not to disclose as
permitted by paragraph (b) does not violate this Rule. Disclosure may be required,
however, by other rules. Some rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand,
requires disclosure in some circumstances regardless of whether such disclosure is
permitted by this Rule. See Rule 3.3.

Acting Competently to Preserve Confidentiality

[18] Paragraph (c) requires a licensed paralegal practitioner to act competently to
safeguard information relating to the representation of a client against unauthorized access
by third parties and against inadvertent or unauthorized disclosure by the licensed
paralegal practitioner or other persons who are participating in the representation of the
client or who are subject to the licensed paralegal practitioner’s supervision. See Rules 1.1,
 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of
paragraph (c) if the licensed paralegal practitioner has made reasonable efforts to prevent
the access or disclosure. Factors to be considered in determining the reasonableness of the licensed paralegal practitioner's efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost
of employing additional safeguards, the difficulty of implementing the safeguards, and the
extent to which the safeguards adversely affect the licensed paralegal practitioner's ability
to represent clients (e.g., by making a device or important piece of software excessively
difficult to use). A client may require the licensed paralegal practitioner to implement
special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a licensed
paralegal practitioner may be required to take additional steps to safeguard a client's
information in order to comply with other law, such as state and federal laws that govern
data privacy or that impose notification requirements upon the loss of, or unauthorized
access to, electronic information, is beyond the scope of these Rules.
For a licensed
paralegal practitioner's duties when sharing information with nonparalegal practitioners
outside the licensed paralegal practitioner's own firm, see Rule 5.3. Comments [3]-[4].

[19] When transmitting a communication that includes information relating to the representation of a client, the licensed paralegal practitioner must take reasonable
precautions to prevent the information from coming into the hands of unintended
recipients. This duty, however, does not require that the licensed paralegal practitioner use special security measures if the method of communication affords a reasonable expectation
of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the licensed paralegal practitioner’s
expectation of confidentiality include the sensitivity of the information and the extent to
which the privacy of the communication is protected by law or by a confidentiality
agreement. A client may require the licensed paralegal practitioner to implement special
security measures not required by this Rule or may give informed consent to the use of a
means of communication that would otherwise be prohibited by this Rule. Whether a
licensed paralegal practitioner may be required to take additional steps in order to comply
with other law, such as state and federal laws that govern data privacy, is beyond the scope
of these Rules.

Former Client

[20] The duty of confidentiality continues after the licensed paralegal practitioner-
client relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.

 

Effective January 16, 2019