The Exceptions That Permit a Lawyer to Disclose
The confidentiality rule contains a list of situations in which a lawyer may reveal information. In the model text every one of them is permissive, and the drafting is careful about how much may be disclosed and to whom. A number of states have made some of them compulsory.
The rule in short
The model confidentiality rule permits, but does not require, disclosure to prevent reasonably certain death or substantial bodily harm, to prevent or mitigate substantial financial injury from a client crime or fraud in which the lawyer's services were used, to obtain ethics advice, to establish a claim or defense in a controversy with the client, to comply with other law or a court order, and to detect conflicts on a change of employment. Disclosure is limited to what is reasonably necessary.
The duty not to reveal information relating to a representation is stated first and qualified second. The qualifications are a short list of situations in which a lawyer may reveal, each drafted with a specific purpose and each carrying an internal limit on how much may be said. Reading them as general permissions is the most common way lawyers get into trouble with them.
Discretion, not instruction
Every ground in the model rule is framed as a permission. The lawyer may reveal information to the extent the lawyer reasonably believes necessary for one of the listed purposes. Nothing obliges the lawyer to act, and the comment is explicit that the decision rests with the lawyer's professional judgment, informed by the seriousness of the harm and the lawyer's own involvement.
That drafting choice is not universal. A number of states have made disclosure compulsory where a client's criminal act would result in death or substantial bodily harm, on the reasoning that discretion is not appropriate when a life is at stake. Others have narrowed the financial-harm exceptions or omitted them. The consequence for a lawyer is that the model text answers the question only in states that adopted it verbatim, and many did not.
Death, bodily harm and financial injury
The first ground permits disclosure to prevent reasonably certain death or substantial bodily harm. It is not confined to criminal acts, and it does not require that the client be the source of the danger. A lawyer who learns that a client's product has a defect that will foreseeably kill someone may act on that knowledge. Reasonably certain means the harm will be suffered imminently, or there is a present and substantial threat that it will occur at a later date if the lawyer does not act.
The two financial grounds are drawn much more narrowly and share a condition. Each applies only where the client has used or is using the lawyer's services in furtherance of a crime or fraud. One permits disclosure to prevent the injury; the other permits it to prevent, mitigate or rectify injury that has already begun. Where the lawyer's services were not used, neither ground opens, however clear the fraud and however large the loss.
A lawyer who cannot continue because of a client's intended conduct may withdraw, and may in some circumstances give notice that a previously delivered opinion or document should no longer be relied on. That step is narrower than revealing what the client said, and it is often the correct first move. Whether a bare notice of this kind is permitted, and in what terms, depends on the adopting state.
Advice, self-defense and fee claims
Two grounds protect the lawyer rather than a third party. The first permits disclosure to secure legal advice about the lawyer's own compliance with the rules, which is what makes it possible to consult ethics counsel or a bar hotline without breaching the duty in the act of asking.
The second is the self-defense ground. A lawyer may reveal what is reasonably necessary to establish a claim or defense in a controversy with the client, to defend against a criminal charge or civil claim based on conduct in which the client was involved, or to respond to allegations in any proceeding concerning the representation. It covers a malpractice defense, a response to a disciplinary complaint, and a suit for an unpaid fee.
Both are bounded by necessity. The lawyer should where practicable seek a protective order or make the disclosure in a way that limits access to the tribunal and the persons who need it. A filing that recites a client's private circumstances in the public record, where a sealed exhibit would have served, exceeds the permission the rule gives.
| Ground for disclosure | Condition that must be present | How far the disclosure may go |
|---|---|---|
| Preventing death or substantial bodily harm | Harm reasonably certain; no criminal act required | What is necessary to prevent it, to those able to prevent it |
| Preventing substantial financial injury | Client crime or fraud using the lawyer's services | What is necessary to prevent the injury |
| Mitigating or rectifying financial injury | Same, where the loss has already begun | What is necessary to limit or repair the loss |
| Securing advice on the lawyer's own compliance | A genuine question about the lawyer's obligations | What the adviser needs to answer the question |
| Claim or defense involving the client | A controversy, charge or allegation concerning the representation | What is necessary to establish the claim or defense |
| Complying with other law or a court order | A legal obligation the lawyer cannot properly resist | What the law or the order actually requires |
Compulsion by law or by a court
The ground permitting disclosure to comply with other law or a court order does less than it appears to. It does not treat a subpoena as an instruction to produce. Where disclosure is sought by a subpoena or a demand from an authority, the lawyer is expected to consult the client if possible, and to assert on the client's behalf any non-frivolous claim that the information is protected before complying.
Only when the demand has been tested and the lawyer is bound does the exception operate, and then only to the extent of the requirement. The distinction between what may be compelled and what a lawyer may volunteer is exactly the distinction between the evidentiary privilege and the ethical duty, which is set out in the comparison of confidentiality with privilege. A lawyer who produces without objection has skipped a step the rule assumes.
Disclosure to detect a conflict
A more recent ground permits limited disclosure to detect and resolve conflicts arising from a lawyer's change of employment or from changes in a firm's composition or ownership. It exists because a lateral hire cannot be cleared without some information about prior matters, and it is confined to what will not compromise the privilege or otherwise prejudice a client.
In practice that means the parties and a general description of the matter, not the substance of the advice. That exchange is the first step in the process by which a firm decides whether it can keep work, which then turns on whether the old matter is substantially related to the new one and, where it is, on whether a screen can prevent imputation to the firm. The disclosure ground and the conflicts rules are designed to operate together, and neither works without the other.
Points to carry away
- In the model text every exception is permissive, giving the lawyer discretion rather than a command.
- Some states convert the death or substantial bodily harm exception into a mandatory disclosure duty.
- The financial crime and fraud exceptions apply only where the client used the lawyer's services.
- A lawyer may reveal what is necessary to defend against a client's accusation or to collect a fee.
- Disclosure to comply with other law or a court order is permitted, but the lawyer must first consider whether to challenge the demand.
- Every exception is limited to the information reasonably necessary to accomplish the permitted purpose.
Questions readers ask
Is a lawyer ever required to disclose rather than merely permitted?
Under the model text, no exception in the confidentiality rule is mandatory. Several states have departed from that choice, most often by requiring disclosure to prevent a criminal act likely to result in death or substantial bodily harm. Separate rules can also compel action: the candor obligation owed to a tribunal requires a lawyer to take remedial measures, including disclosure if necessary, where the lawyer has offered evidence later discovered to be false. A lawyer facing this question must read the adopting state's text rather than the model.
How much may a lawyer reveal when defending against a client's claim?
Only what is reasonably necessary to establish the claim or defense. The exception covers a controversy between the lawyer and the client, a civil or criminal charge arising from conduct in which the client was involved, and a response to allegations in any proceeding concerning the representation. It does not authorize a public rebuttal. The exception can be invoked before formal proceedings begin where the lawyer has been formally accused, but the disclosure should be made in a setting that limits access, such as under seal or in camera.
Does the fee-collection ground let a lawyer file a public complaint listing the work done?
It permits disclosure to establish a claim on the lawyer's behalf, which includes suing for an unpaid fee. The limits still apply: the disclosure must be no broader than necessary, and courts frequently accept filings under seal or with details omitted for exactly this reason. Some jurisdictions expect a lawyer to use a fee arbitration program before litigating, and a suit that recites a client's confidential circumstances in an open filing when a narrower route existed can produce a disciplinary problem alongside the fee claim.
Sources
- ABA Model Rules of Professional Conduct — Rule 1.6, Confidentiality of InformationThe list of permissive exceptions and the duty to take reasonable steps against inadvertent disclosure.
- ABA Model Rules — Comment on Rule 1.6Explains the scope of each ground and the requirement that disclosure be no greater than necessary.
- ABA Model Rules — Rule 3.3, Candor Toward the TribunalImposes remedial duties that expressly override the confidentiality rule in proceedings before a tribunal.
- ABA Model Rules — Rule 1.2, Scope of Representation and Allocation of AuthorityProhibits assisting a client in conduct the lawyer knows is criminal or fraudulent, the trigger for two exceptions.
- ABA Model Rules — Rule 1.13, Organization as ClientProvides a separate disclosure route where an entity's constituent acts against the organization's interest.
- The Florida Bar — Rules Regulating The Florida BarAn adopted state text that makes certain disclosures mandatory where the model rule leaves discretion.
- ABA Model Rules of Professional Conduct — Table of ContentsThe complete model text for comparison against the rule actually adopted in a jurisdiction.
Justice Partners Journal is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
