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Rule 1.6. Confidentiality of Information.

(a) A lawyer shall not reveal information relating to therepresentation of a client unless the client gives informed consent, thedisclosure is impliedly authorized in order to carry out the representation orthe disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representationof a client to the extent the lawyer reasonably believes necessary:

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

(b)(2) to prevent the client fromcommitting a crime or fraud that is reasonably certain to result in substantialinjury to the financial interests or property of another and infurtherance of which the client has used or is using the lawyer?sservices;

(b)(3) to prevent, mitigate or rectifysubstantial injury to the financial interests or property of another that isreasonably certain to result or has resulted from the client?scommission of a crime or fraud in furtherance of which the client has usedthe lawyer?s services;

(b)(4) tosecure legal advice about the lawyer's compliance with these Rules;

(b)(5) to establish a claim or defenseon behalf of the lawyer in a controversy between the lawyer and the client, toestablish a defense to a criminal charge or civil claim against the lawyerbased upon conduct in which the client was involved, or to respond toallegations in any proceeding concerning the lawyer?s representationof the client;

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

(b)(7) todetect and resolve conflicts of interest arising from the lawyer's change ofemployment or from changes in the composition or ownership of a firm, but onlyif the revealed information would not compromise the attorney-client privilegeor otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent theinadvertent or unauthorized disclosure of, or unauthorized access to,information relating to the representation of a client.

(d) For purposes of this rule, representation of a clientincludes counseling a lawyer about the need for or availability of treatmentfor substance abuse or psychological or emotional problems by members of theUtah State Bar serving on a Utah State Bar endorsed lawyer assistance program.

Comment

[1] This Rule governs the disclosure by a lawyer of informationrelating to the representation of a client during the lawyer?srepresentation of the client. See Rule 1.18 for the lawyer?s duties withrespect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer?s duty not to reveal informationrelating to the lawyer?s prior representation of a former client and Rules1.8(b) and 1.9(c)(l) for the lawyer?s duties with respect to the useof such information to the disadvantage of clients and former clients.

[2] A fundamental principle in the client-lawyer relationship isthat, in the absence of the client?s informed consent, the lawyer must notreveal information relating to the representation. See Rule 1.0(f) for thedefinition of informed consent. This contributes to the trust that is thehallmark of the client-lawyer relationship. The client is thereby encouraged toseek legal assistance and to communicate fully and frankly with the lawyer evenas to embarrassing or legally damaging subject matter. The lawyer needs thisinformation to represent the client effectively and, if necessary, to advisethe client to refrain from wrongful conduct. Almost without exception, clientscome to lawyers in order to determine their rights and what is, in the complexof laws and regulations, deemed to be legal and correct. Based upon experience,lawyers know that almost all clients follow the advice given, and the law isupheld.

[3] The principle of client-lawyer confidentiality is given effectby related bodies of law: the attorney-client privilege, the work productdoctrine and the rule of confidentiality established in professional ethics.The attorney-client privilege and work product doctrine apply in judicialand other proceedings in which a lawyer may be called as a witness or otherwiserequired to produce evidence concerning a client. The rule of client-lawyerconfidentiality applies in situations other than those where evidence is soughtfrom the lawyer through compulsion of law. The confidentiality rule, forexample, applies not only to matters communicated in confidence by the clientbut also to all information relating to the representation, whatever itssource. A lawyer may not disclose such information except as authorized orrequired by the Rules of Professional Conduct or other law. See also Scope.

[4] Paragraph (a) prohibits a lawyer from revealing informationrelating to the representation of a client. This prohibition also applies todisclosures by a lawyer that do not in themselves reveal protected informationbut could reasonably lead to the discovery of such information by a thirdperson. A lawyer?s use of a hypothetical to discuss issues relating to therepresentation is permissible so long as there is no reasonable likelihoodthat the listener will be able to ascertain the identity of the client or thesituation involved.

Authorized Disclosure

[5] Except to the extent that the client?s instructions orspecial circumstances limit that authority, a lawyer is impliedly authorized tomake disclosures about a client when appropriate in carrying out therepresentation. In some situations, for example, a lawyer may be impliedlyauthorized to admit a fact that cannot properly be disputed or to make adisclosure that facilitates a satisfactory conclusion to a matter.Lawyers in a firm may, in the course of the firm's practice, disclose to eachother information relating to a client of the firm, unless the client hasinstructed that particular information be confined to specified lawyers.

Disclosure Adverse to Client

[6] Although the public interest is usually best served by astrict rule requiring lawyers to preserve the confidentiality of informationrelating to the representation of their clients, the confidentiality rule issubject to limited exceptions. Paragraph (b)(1)recognizes the overriding value of life and physical integrity and permitsdisclosure reasonably necessary to prevent reasonably certain death orsubstantial bodily harm. Such harm is reasonably certain to occur if it will besuffered imminently or if there is a present and substantial threat that aperson will suffer such harm at a later date if the lawyer fails to take actionnecessary to eliminate the threat. Thus, a lawyer who knows that a client hasaccidentally discharged toxic waste into a town?s water supply may revealthis information to the authorities if there is a present and substantial riskthat a person who drinks the water will contract a life-threatening ordebilitating disease and the lawyer?s disclosure is necessary to eliminate thethreat or reduce the number of victims.

[7] Paragraph (b)(2) is a limitedexception to the rule of confidentiality that permits the lawyer to revealinformation to the extent necessary to enable affected persons or appropriateauthorities to prevent the client from committing a crime or fraud, as definedin Rule 1.0(e), that is reasonably certain to result in substantial injury tothe financial or property interests of another and in furtherance of which theclient has used or is using the lawyer?s services. Such a seriousabuse of the client-lawyer relationship by the client forfeits the protectionof this Rule. The client can, of course, prevent such disclosure byrefraining from the wrongful conduct. Although paragraph (b)(2)does not require the lawyer to reveal the client?s misconduct, the lawyermay not counsel or assist the client in conduct the lawyer knows is criminal orfraudulent. See Rule 1.2(d). See also Rule 1.16 with respect to the lawyer?sobligation or right to withdraw from the representation of the client insuch circumstances, and Rule 1.13(c) which permits the lawyer, where the clientis an organization, to reveal information relating to the representation inlimited circumstances.

[8] Paragraph (b)(3) addresses thesituation in which the lawyer does not learn of the client?s crime orfraud until after it has been consummated. Although the client no longer hasthe option of preventing disclosure by refraining from the wrongfulconduct, there will be situations in which the loss suffered by the affectedperson can be prevented, rectified or mitigated. In such situations, the lawyermay disclose information relating to the representation to the extent necessaryto enable the affected persons to prevent or mitigate reasonably certain lossesor to attempt to recoup their losses. Paragraph (b)(3)does not apply when a person who has committed a crime or fraud thereafteremploys a lawyer for representation concerning that offense.

[9] A lawyer?s confidentiality obligations do not preclude alawyer from securing confidential legal advice about the lawyer?s personalresponsibility to comply with these Rules. In most situations, disclosinginformation to secure such advice will be impliedly authorized for the lawyerto carry out the representation. Even when the disclosure is not impliedlyauthorized, paragraph (b)(4) permits such disclosurebecause of the importance of a lawyer?s compliance with the Rules ofProfessional Conduct.

[10] Where a legal claim or disciplinary charge alleges complicityof the lawyer in a client?s conduct or other misconduct of the lawyerinvolving representation of the client, the lawyer may respond to the extentthe lawyer reasonably believes necessary to establish a defense. The same istrue with respect to a claim involving the conduct or representation of aformer client. Such a charge can arise in a civil, criminal , disciplinary orother proceeding and can be based on a wrong allegedly committed by the lawyeragainst the client or on a wrong alleged by a third person, for example, aperson claiming to have been defrauded by the lawyer and client actingtogether. The lawyer?s right to respond arises when an assertion of suchcomplicity has been made. Paragraph (b)(5) does not require the lawyer to awaitthe commencement of an action or proceeding that charges such complicity, sothat the defense may be established by responding directly to a third party whohas made such an assertion. The right to defend also applies, of course, wherea proceeding has been commenced.

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

[12] Other law may require that a lawyer disclose informationabout a client. Whether such a law supersedes Rule 1.6 is a question of lawbeyond the scope of these Rules. When disclosure of information relating to therepresentation appears to be required by other law, the lawyer must discuss thematter with the client to the extent required by Rule 1.4. If, however, theother law supersedes this Rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as arenecessary to comply with the law.

Detection of Conflicts of lnterest

[13] Paragraph (b)(7) recognizes that lawyers in different firmsmay need to disclose limited information to each other to detect and resolveconflicts of interest, such as when a lawyer is considering an association withanother firm, two or more firms are considering a merger, or a lawyer isconsidering the purchase of a law practice. See Rule 1.17. Comment[7]. Under these circumstances, lawyers and law firms are permitted to discloselimited information, but only once substantive discussions regarding the newrelationship have occurred. Any such disclosure should ordinarily include nomore than the identity of the persons and entities involved in a matter, abrief summary of the general issues involved, and information about whether thematter has terminated. Even this limited information, however, should bedisclosed only to the extent reasonably necessary to detect and resolveconflicts of interest that might arise from the possible new relationship.Moreover, the disclosure of any information is prohibited if it wouldcompromise the attorney-client privilege or otherwise prejudice the client(e.g., the fact that a corporate client is seeking advice on a corporatetakeover that has not been publicly announced; that a person has consulted alawyer about the possibility of divorce before the person's intentions areknown to the person's spouse; or that a person has consulted a lawyer about acriminal investigation that has not led to a public charge). Under thosecircumstances, paragraph (a) prohibits disclosure unless the client or formerclient gives informed consent. A lawyer's fiduciary duty to the lawyer's firmmay also govern a lawyer's conduct when exploring an association with anotherfirm 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 extentnecessary to detect and resolve conflicts of interest. Paragraph (b)(7) does not restrict the use of information acquired bymeans independent to any disclosure pursuant to paragraph (b)(7). Paragraph(b)(7) also does not affect the disclosure of information within a law firmwhen the disclosure is otherwise authorized, see Comment [5], such as when alawyer in a firm discloses information to another lawyer in the same firm todetect and resolve conflicts of interest that could arise in connection withundertaking a new representation.

[15] A lawyer may be ordered to reveal information relating to therepresentation of a client by a court or by another tribunal or governmentalentity claiming authority pursuant to other law to compel the disclosure.Absent informed consent of the client to do otherwise, the lawyer should asserton behalf of the client all nonfrivolous claims thatthe order is not authorized by other law or that the information sought isprotected against disclosure by the attorney-client privilege or otherapplicable law. In the event of an adverse ruling, the lawyer must consult withthe client about the possibility of appeal to the extent required by Rule 1.4.Unless review is sought, however, paragraph (b)(6)permits the lawyer to comply with the court?s order.

[16] Paragraph (b) permits disclosure only to the extent the lawyerreasonably believes the disclosure is necessary to accomplish one of thepurposes specified. Where practicable, the lawyer should first seek to persuadethe client to take suitable action to obviate the need for disclosure. In anycase, a disclosure adverse to the client?s interest should be no greaterthan the lawyer reasonably believes necessary to accomplish thepurpose. If the disclosure will be made in connection with a judicialproceeding, the disclosure should be made in a manner that limits access to theinformation to the tribunal or other persons having a need to know it andappropriate protective orders or other arrangements should be sought by thelawyer to the fullest extent practicable.

[17] Paragraph (b) permits but does not require the disclosure ofinformation relating to a client?s representation to accomplish thepurposes specified in paragraphs (b)(1) through (b)(6). In exercising thediscretion conferred by this Rule, the lawyer may consider such factors as thenature of the lawyer?s relationship with the client and with those who might beinjured by the client, the lawyer?s own involvement in the transaction andfactors that may extenuate the conduct in question. A lawyer?s decision not todisclose as permitted by paragraph (b) does not violate this Rule. Disclosuremay be required, however, by other rules. Some rules require disclosure only ifsuch disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b),8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in somecircumstances regardless of whether such disclosure is permitted by this Rule.See Rule 3.3(d).

Acting Competently to Preserve Confidentiality

[18] Paragraph (c) requires a lawyer to actcompetently to safeguard information relating to the representation of a clientagainst unauthorized access by third parties and against inadvertentor unauthorized disclosure by the lawyer or other persons who are participatingin the representation of the client or who are subject to the lawyer?s supervision.See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertentor unauthorized disclosure of, information relating to the representation of aclient does not constitute a violation of paragraph (c) if the lawyer has madereasonable efforts to prevent the access or disclosure. Factors to beconsidered in determining the reasonableness of the lawyer's efforts include,but are not limited to, the sensitivity of the information, the likelihood ofdisclosure if additional safeguards are not employed, the cost of employingadditional safeguards, the difficulty of implementing the safeguards, and theextent to which the safeguards adversely affect the lawyer's ability torepresent clients (e.g., by making a device or important piece of softwareexcessively difficult to use). A client may require the lawyer to implementspecial security measures not required by this Rule or may give informedconsent to forgo security measures that would otherwise be required by thisRule. Whether a lawyer may be required to take additionalsteps 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 imposenotification requirements upon the loss of, or unauthorized access to,electronic information, is beyond the scope of these Rules. For alawyer's duties when sharing information with nonlawyersoutside the lawyer's own firm, see rule 5.3. Comments[3]-[4].

[19] When transmitting a communication that includes informationrelating to the representation of a client, the lawyer must take reasonableprecautions to prevent the information from coming into the hands of unintendedrecipients. This duty, however, does not require that the lawyer use specialsecurity measures if the method of communication affords a reasonableexpectation of privacy. Special circumstances, however, may warrant specialprecautions. Factors to be considered in determining the reasonablenessof the lawyer?s expectation of confidentiality include the sensitivity ofthe information and the extent to which the privacy of the communicationis protected by law or by a confidentiality agreement. A client may require thelawyer to implement special security measures not required by this Rule or maygive informed consent to the use of a means of communication that wouldotherwise be prohibited by this Rule. Whether a lawyermay 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 ofthese Rules.

Former Client

[20] The duty of confidentiality continues after the client-lawyerrelationship has terminated. See Rule 1.9(c)(2). SeeRule 1.9(c)(1) for the prohibition against using suchinformation to the disadvantage of the former client.

[20a] Paragraph (d) is an addition to ABA Model Rule 1.6 andprovides for confidentiality of information between lawyers providing assistanceto other lawyers under a Utah State Bar endorsed lawyer assistanceprogram.

 

Effective November 1, 2017