A Confidentiality Exception

• Author: David L. Hudson Jr.
• Pages: 24-25

A Confi dentiality Exception

Opinion says ‘generally known’ info may be treated di erently

By David L. Hudson Jr.

Confi dentiality is one of the cornerstone concepts of

professional responsibility. An at torney’s duty of confi -

dentiality ext ends beyond current clients and applies to

former clients.

Under ABA Model Rule 1.9(c)(1), a lawyer cannot use

information related to the repre sentation of a former

client to disadvanta ge that client with-

out their informed consent, unle ss the

information has become “general ly

kno wn.”

Rule 1.9(c) provides: “A lawyer who

has formerly represented a client in

a matter or whose present or former

fi rm has formerly represented a client

in a matter shall not there after: (1) use

information relating to the repre senta-

tion to the disadvanta ge of the former

client except as these rule s would per-

mit or require with re spect to a client,

or when the information has become

generally known; or (2) reveal infor-

mation relating to the representation

except as these rule s would permit or

require with res pect to a client.”

This exception in Rule 1.9(c)(1) has

been the subject of some debate. It is

not defi ned in the ABA Model Rules of

Professional Conduct. Now, the ABA

Standing Commit tee on Ethics and

Professional Responsibilit y has pro-

vided guidance on the mea ning of the

exception in Formal Opinion 479.

Courts have held that infor mation is

not generally known just bec ause it’s a

public record or in a court fi ling. The

information must be with in the under-

standing and knowledge of the genera l

public.

Opinion 479 says information is gen-

erally known if “(a) it is widely recog-

nized by members of the public in the

relevant geographic area ; or (b) it is

widely recognize d in the former client’s industry,

profession or trade.”

A SENSIBLE DEFINITION

Nancy J. Moore, a professor at the Boston University

School of Law, says the defi nition is “useful and sensible.”

“There currently is no defi nition

of the term generally known in

either the text or comment of Rule 1.9.

Given that it is not obvious when

information has become genera lly

known, some defi nition is clearly

useful,” Moore says.

When does information become

widely recognize d? The opinion says

information can bec ome widely rec-

ognized through “ traditional media

sources, such as newspaper s, maga-

zines, radio or telev ision; through

publication on internet websites; or

through social media .”

“I agree that this defi nition make s

sense, though I don’t think it nec-

essarily resolve s what is generally

known in every i nstance,” says Renee

N. Knake, who tea ches legal ethics at

the University of Houston Law Center

and recently co-wrot e Professional

Responsibility: A Contemporary

Approach. “Inevitably gray areas w ill

arise, but I do think t hat the opinion

o ers helpful guidance as to what

may constitute ‘generally know n.’ ”

She says questions remain as t o

what “minimum threshold of publica-

tions” are necessar y to establish that

the information is generally k nown.

“What about other sources, such

as a public survey or opinion poll?”

she says. Regarding wide rec ognition

in the former client’s industry or pro-

fession, Knake ask s whether it is

Ethics

“INFORMATION CONTAINED

IN PUBLIC RECORDS

IS NOT ALWAYS EASILY

OR INEX PENSIVELY

OBTAINABLE, PARTICULAR

WHEN A FOIA REQUEST

IS REQUIRED.”

— NANCY MOORE

PHOTOGRAPH BY BU PHOTO

24 || ABA JOURNAL MARCH 2018

EDITED BY KEVIN DAVIS,

LIANE JACKSON

Practice