Md. R. Att'y 19-301.6
Md. R. Att'y 19-301.6
COMMENT
[1] This Rule governs the disclosure by an attorney of information relating to the representation of a client during the attorney's representation of the client. See Rule 19-301.18 (1.18) for the attorney's duties with respect to information provided to the attorney by a prospective client, Rule 19-301.9(c)(2) (1.9) for the attorney's duty not to reveal information relating to the attorney's prior representation of a former client and Rules 19-301.8(b) (1.8) and 19-301.9 (c)(1) (1.9) for the attorney's duties with respect to the use of such information to the disadvantage of clients and former clients.
[2] A fundamental principle in the client-attorney relationship is that, in the absence of the client's informed consent, the attorney must not reveal information relating to the representation. See Rule 19-301.0(g) (1.0) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-attorney relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the attorney even as to embarrassing or legally damaging subject matter. The attorney needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to attorneys in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, attorneys know that almost all clients follow the advice given, and the law is upheld.
[3] The principle of client-attorney confidentiality is given effect by related bodies of law: the attorney-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 an attorney may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-attorney confidentiality applies in situations other than those where evidence is sought from the attorney 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. An attorney may not disclose such information except as authorized or required by the Maryland Attorneys' Rules of Professional Conduct or other law. See also Scope.
[4] Section (a) of this Rule prohibits an attorney from revealing information relating to the representation of a client. This prohibition also applies to disclosures by an attorney that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. An attorney'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.
Implied Authority to Disclose--[5] Except to the extent that the client's instructions or special circumstances limit that authority, an attorney is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, an attorney 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. Attorneys 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 attorneys.
Disclosure Adverse to Client--[6] Although the public interest is usually best served by a strict rule requiring attorneys to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. Section (b) of this Rule, however, permits disclosure only to the extent the attorney reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the attorney 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 attorney 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 attorney to the fullest extent practicable.
[7] Section (b) of this Rule permits, but does not require the disclosure of information relating to a client's representation to accomplish the purposes specified in subsections (b)(1) through (b)(6) of this Rule. In exercising the discretion conferred by this Rule, the attorney may consider such factors as the nature of the attorney's relationship with the client and with those who might be injured by the client, the attorney's own involvement in the transaction and factors that may extenuate the conduct in question. An attorney's decision not to disclose as permitted by section (b) of this Rule does not violate this Rule. Disclosure may be required, however, by other Rules regardless of whether the disclosure is permitted by Rule 19-301.6 (1.6). See Rules 19-301.2(d) (1.2), 19-303.3 (a)(4) (3.3), 19-304.1 (b) (4.1), 19-308.1 (8.1) and 19-308.3 (8.3). An attorney representing an organization may in some circumstances be permitted to disclose information regardless of whether the disclosure is permitted by Rule 19-301.6(b) (1.6). See Rule 19-301.13(c) (1.13).
[8] Subsection (b)(1) of this Rule recognizes the overriding value of life and physical integrity and permits disclosure reasonably believed 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 attorney fails to take action necessary to eliminate the threat. Thus, an attorney who knows that a client has accidentally discharged toxic waste into a town's water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease, and the attorney reasonably believes disclosure is necessary to eliminate the threat or reduce the number of victims.
[9] Subsection (b)(2) of this Rule is a limited exception to the rule of confidentiality that permits the attorney to reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or a fraud, as defined in Rule 19-301.0(e) (1.0), 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 attorney's services. Such a serious abuse of the client-attorney 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 subsection (b)(2) of this Rule does not require the attorney to reveal the client's misconduct, the attorney may not counsel or assist the client in conduct the attorney knows is criminal or fraudulent. See Rule 19-301.2(d) (1.2). See also Rule 19-301.16 (1.16) with respect to the attorney's obligation or right to withdraw from the representation of the client in such circumstances. Where the client is an organization, the attorney should consult Rule 19-301.13(b) (1.13).
[10] Subsection (b)(3) of this Rule addresses the situation in which the attorney does not learn of a client's criminal or fraudulent act in furtherance of which the attorney's services were used until after the act has occurred. 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 attorney 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. Subsection (b)(3) of this Rule does not apply when a person who has committed a crime or fraud thereafter employs an attorney for representation concerning that offense.
[11] An attorney's confidentiality obligations do not preclude an attorney from securing confidential legal advice about the attorney's personal responsibility to comply with these Rules, a court order or other law. In most situations, disclosing information to secure such advice will be impliedly authorized for the attorney to carry out the representation. Even when the disclosure is not impliedly authorized, subsection (b)(4) of this Rule permits such disclosure because of the importance of an attorney's compliance with the law.
Withdrawal--[12] If the attorney knows that the attorney's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the attorney must withdraw, as stated in Rule 19-301.16(a)(1) (1.16). After withdrawal the attorney is required to refrain from making disclosure of the client's confidences, except as otherwise provided in Rule 19-301.6 (1.6) or in other Rules.
[13] If the attorney knows that despite the withdrawal the client is continuing in conduct that is criminal or fraudulent, and is making use of the fact that the attorney was involved in the matter, the attorney may have to take positive steps to avoid being held to have assisted the conduct. See Rules 19-301.2(d) (1.2) and 19-304.1 (b) (4.1). In other situations not involving such assistance, the attorney has discretion to make disclosure of otherwise confidential information only in accordance with Rules 19-301.6 (1.6) and 19-301.13 (c) (1.13). Neither this Rule nor Rule 19-301.8(b) (1.8) nor Rule 19-301.16(d) (1.16) prevents the attorney from giving notice of the fact of withdrawal, and the attorney may also withdraw or disaffirm any opinion, document, affirmation, or the like.
Dispute Concerning Attorney's Conduct--[14] Where a legal claim or disciplinary charge alleges complicity of the attorney in a client's conduct or other misconduct of the attorney involving representation of the client, the attorney may respond to the extent the attorney 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 attorney against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the attorney and client acting together. The attorney's right to respond arises when an assertion of such complicity has been made. Subsection (b)(5) of this Rule does not require the attorney 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.
[15] An attorney entitled to a fee is permitted by subsection (b)(5) of this Rule 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.
Disclosures Otherwise Required or Authorized--[16] As noted in Comment 7, Rules 19-303.3(b) (3.3) and 19-304.1 (b) (4.1) require disclosure in some circumstances regardless of whether the disclosure is permitted by Rule 19-301.6 (1.6). Circumstances may be such that disclosure is required under other Rules, for example, Rule 19-301.2(d) (1.2), in order to avoid assisting a client to perpetrate a crime or fraud.
[17] Other law may require that an attorney disclose information about a client. Whether such a law supersedes Rule 19-301.6 (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 attorney must discuss the matter with the client to the extent required by Rule 19-301.4 (1.4). If, however, the other law supersedes this Rule and requires disclosure, subsection (b)(6) of this Rule permits the attorney to make such disclosures as are necessary to comply with the law.
[18] An attorney 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 attorney 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 attorney must consult with the client about the possibility of appeal to the extent required by Rule 19-301.4 (1.4). Unless review is sought, however, subsection (b)(6) of this Rule permits the attorney to comply with the court's order.
Acting Competently to Preserve Confidentiality--[19] An attorney must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the attorney or other persons who are participating in the representation of the client or who are subject to the attorney's supervision. See Rules 19-301.1 (1.1), 19-305.1 (5.1) and 19-305.3 (5.3).
[20] When transmitting a communication that includes information relating to the representation of a client, the attorney must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the attorney 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 attorney'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 attorney 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.
Former Client--[21] The duty of confidentiality continues after the client-attorney relationship has terminated. See Rule 19-301.9(c)(2) (1.9). See Rule 19-301.9(c)(1) (1.9) for the prohibition against using such information to the disadvantage of the former client.
Model Rules Comparison: Rule 19-301.6 (1.6) retains elements of former Rule 1.6 language, incorporates some changes from the Ethics 2000 Amendments to the ABA Model Rules, and incorporates further revisions.