Most lawyers know that you can’t disclose a current client’s confidential information. But many lawyers—when they are either telling a war story or are trying to illustrate a point— voluntarily reveal confidential information about their former clients. Lawyers also are tempted to use their former clients’ confidential information when they are offered a lucrative case or transaction to handle. So what are the rules that lawyers must follow about revealing or using the confidential information of a former client? A new ABA Opinion sheds light on the matter.
Texas Disciplinary Rule of Professional Conduct 1.05 (a) defines “Confidential Information” as follows:
“Confidential information” includes both “privileged information” and unprivileged client information.” “Privileged information” refers to the information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. “Unprivileged client information” means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.
Lawyers understand the confidentiality of communications covered by the lawyer-client privilege under Rule 503, but they can be easily tripped up by the broad nature of “unprivileged client information.” This can include information revealed to a lawyer by a client even if it has been on the 10:00 news, in the newspaper, or on the Internet if the intent is for it to be confidential.
Rule 1.05 (b) (1) requires a lawyer to not reveal confidential information of either a current or a former client to any person the client instructs is not to receive it or anyone other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm. There are exceptions in subsections (c), (d), (e) and (f) that allow a lawyer to reveal either confidential information or unprivileged client information, but the primary one is based on client consent after consultation.
Rule 1.05 (b) (3) states that “a lawyer shall not knowingly use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.” The first part is simple, but what does “has become generally known” mean? The phrase is not defined in the comments to the rule.
The phrase is discussed in Texas Ethics Opinion 595 issued in 2010, which states that information that is a matter of public record may not be “generally known.” Information that has become generally known is actually known to some members of the general public and is not merely available to be known if members of the general public choose to look where the information is to be found.
On December 15, 2017, the ABA issued Formal Opinion 479, which discussed the meaning of the phrase “generally known” in connection with Model Rule 1.9(c), which is the equivalent of Texas Rule 1.05 (b)(3). After discussing authorities around the country—including Texas Ethics Opinion 595—the ABA said the “generally known” exception applies only if the information has become (a) widely recognized by members of the public in the relevant geographic area; or (b) widely recognized in the former client’s industry, profession, or trade. Information is not “generally known” simply because it has been discussed in open court, or is available in court records, libraries, or other public repositories of information.
The bottom line is that a lawyer needs to tread very carefully with either revealing or using a former client’s confidential information. The definition of “confidential information” is very broad and, absent client consent, lawyers should err on the side of keeping all former client information confidential.