Vol. 29, No. 6 #2 (December 2006). ETHICALLY SPEAKING.

• Author: The Disclosure of Confidential Information Under the New Wyoming Rules of Professional Conduct

Wyoming Bar Journal

2006.

Vol. 29, No. 6 #2 (December 2006).

ETHICALLY SPEAKING

WYOMING LAWYER December 2006/Vol. 29, No. 6 ETHICALLY SPEAKING The Disclosure of Confidential Information Under the New Wyoming Rules of Professional Conduct

By John M. Burman The August "Ethically Speaking" column ended by stating that "[a] number of exceptions exist regarding the ethical duty of confidentiality. They will be discussed in the next issue of the WYOMING LAWYER."(fn1) That didn't happen. Now it will.

Rule 1.6(a) allows an attorney to disclose "confidential information" ("Confidential information" is "information provided by the client or relating to the client which is not otherwise available to the public."(fn2)) in three circumstances: (1) "the client makes an informed decision to allow disclosure;" (2) disclosure is "impliedly authorized in order to carry out the representation;" or (3) disclosure is permitted by paragraph (b). The first exception, disclosure after the client makes an informed decision, is simply a restatement that clients are to receive, and lawyers are to give them, enough information so that the client can make an informed decision about the matter.(fn3)

The second exception, disclosure is permitted when "impliedly authorized," is a bit more difficult to apply. The general standard is that lawyer "is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation."(fn4) This is not particularly helpful, but the commentary gives some examples. An attorney "may," for example, "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."(fn5) When in doubt about whether disclosure is impliedly authorized, the answer is simple. Ask the client to make an informed decision to allow the disclosure.

Paragraph (b) permits the disclosure of confidential information in four situations. First, when the attorney "reasonably believes" that disclosure is "necessary" to "prevent the client from committing a criminal act."(fn6) Second, when an attorney is uncertain about his or her ethical obligations, he or she may disclose confidential information "to secure legal advice about the lawyer's compliance with [the] Rules."(fn7) Third, a lawyer may disclose such information when necessary to defend against a claim brought by a client or pursue a claim against a client(fn8) or a former client.(fn9) Finally, a lawyer may reveal confidential information "to comply with other law or a court order."(fn10) Disclosure is generally permissive, though it is mandatory at times. When disclosure is permissive, "[a] lawyer's decision not to disclose . . . does not violate this Rule."11

Whenever confidential information is disclosed, the disclosure must be limited to the information the "lawyer reasonably believes . . . necessary to accomplish one of the purposes specified."(fn12) Before disclosing confidential information, a lawyer has another important ethical obligation.

One of the permitted bases for disclosing confidential information is that the client has made an informed decision to allow such disclosure.(fn13) Accordingly, before a lawyer unilaterally decides to disclose information pursuant to one of the exceptions, the lawyer has an obligation to inform the client of the client's options-the client may (1) agree to change his or her intended conduct so that disclosure is not necessary, (2) agree to the lawyer's disclosure; or (3) not agree to such disclosure, knowing that the lawyer may disclose anyway. In particular, if the client intends to commit a criminal act, "the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure."(fn14)

The reason for consulting with the client before disclosure is that the client is entitled to enough information to make an informed decision about how to proceed. Knowing that a lawyer will disclose information unless the client alters his or her conduct or consents to disclosure will likely alter the client's behavior.(fn15)

Intra-firm Disclosure

Lawyers in a firm are generally permitted to disclose confidential information to each other.(fn16) The only exception is when "the client has instructed that particular information be confined to specified lawyers."(fn17)

Although Rule 1.6 and its commentary do not expressly refer to support staff and permit the disclosure of confidential information to such persons, the general structure and purpose of the Rules supports the proposition that lawyers may disclose confidential information to their staffs.

The lawyers in charge of a law office, whether private, corporate, or government, have a duty to "make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that [support staff members'] conduct is compatible with the professional obligations of the lawyer."(fn18) Managing attorneys are directed to provide training and supervision "particularly regarding the obligation not to disclose information relating to representation of the client."(fn19) The only reason to train and supervise non-lawyers about the obligation of confidentiality is that they will have access to such information. It seems clear, therefore, that attorneys may disclose confidential information to support staff members, unless the client directs otherwise.

Disclosure of Confidential Information to Prevent a Client from Committing a Crime

Wyoming attorneys have broad discretion to reveal confidential information. A lawyer "may reveal such information to the extent the lawyer reasonably believes necessary . . . to prevent the client from committing a criminal act."(fn20) The exception has three important concepts.

First, the "duty" is discretionary. The rule "permits," but does not require, disclosure.(fn21) Since the rule is permissive, "[a] lawyer's decision not to disclose does not violate this Rule [1.6]. Disclosure may be required, however, by other Rules."(fn22) It is important to remember that while a lawyer generally has no ethical duty to disclose such information, he or she may have a legal one.(fn23)

Second, before revealing information, the lawyer must "reasonably believe[]" disclosure is necessary.(fn24) "Reasonably believes" is a defined term. It means "that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable."(fn25) The definition incorporates both subjective and objective elements.

The subjective aspect comes from the definition of "believes." It means a lawyer "actually supposed the fact in question to be true. A person's belief may be inferred from circumstances."(fn26) The "actually supposed" language means the lawyer subjectively believes the matter in question. The last sentence, that "belief may be inferred from circumstances," puts an objective gloss on the definition. Simply stated, a lawyer may not close his or her eyes to the obvious and then claim ignorance.

The objective aspect derives from the definition of "reasonably." Using that term incorporates the proverbial reasonable lawyer standard. "[R]easonably' when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer."(fn27)

When read in light of the applicable definitions, "reasonably believes" means that a lawyer actually believes something...