Colorado Supreme Court

Office of Attorney Regulation Counsel

Promoting Professionalism. Protecting the Public.

The two biggest misconceptions about confidentiality

Why Rule 1.6 is different from the attorney-client privilege.



A mistake we see again and again in this office is that lawyers confuse their obligation of confidentiality under Rule 1.6 with the separate evidentiary attorney-client privilege. In motions to withdraw, in emails to third-parties, in casual conversations, or in responding to online reviews, lawyers get in trouble because they do not understand that Rule 1.6 is much broader that the attorney-client privilege.

Misconception Number One. There is no exception for information in public records. See Colorado Formal Ethics Opinion 130 (approved April 3, 2017). Maybe no other single misconception brings more calls to our office related to confidentiality.  Just because something is in the public record does not mean that it fits within an exception to Rule 1.6.

Misconception Number Two. Even if information has been reported in the media, a lawyer may not disclose it. Id. There is no media exception under Rule 1.6. The “generally known” exception for former clients is found under Rule 1.9(C)(1) and is not the same.    A lawyer is obligated to not reveal information relating to the representation of a client except as permitted by Rule 1.6.

These misconceptions seem to come from a misunderstanding that Rule 1.6 is the same as the evidentiary privilege.

The attorney-client privilege is an evidentiary privilege and refers to what an attorney may not testify to without the client’s consent.   C.R.S. § 13-90-107(1)(b).   That includes communications made by the client to the attorney or the attorney’s advice to the client in the course of his professional employment. An attorney’s obligation of confidentiality under Rule 1.6 extends far further.

The rule of confidentiality applies “not only to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source.” Rule 1.6, Comment [3] (emphasis added).   That is a large category of information and the Rule requires that attorneys not reveal such information except as permitted by the Rule.  The exceptions are narrow and a lawyer should be carefully review them when revealing ANY information about a client.