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.
By E. JAMES WILDER
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.