ABA Opinion: Information in Public Records Still Requires Obligation of Attorney Confidentiality in Most Cases

Attorneys have obligations to maintain the confidentiality of information they acquire when meeting prospective clients (Prof.Cond.R. 1.18), throughout the course of that representation (Prof.Cond.R. 1.6), and following that representation (Prof.Cond.R. 1.9).

There are exceptions in each of these circumstances, but the default rule is that they must treat this information as confidential. That’s the case for information that is also protected by attorney-client privilege (or would otherwise be privileged if shared by a prospective client instead of a current one), but the protections for confidential information are far broader than this: Absent exceptions, Prof.Cond.R. 1.6(c) compels lawyers to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of or unauthorized access to “information related to the representation of a client.” Comment [3] to Rule 1.6 provides, “The [client-lawyer] 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. A lawyer may not disclose such information except as authorized or required by the Ohio Rules of Professional Conduct or other law.” (Emphasis added.) Unless an applicable exception in Rule 1.6 applies, attorneys should refrain from discussing a whole series of items that relate to their representation; this may include the mere fact of their representation, the client’s identity, and information they have learned from that representation—even if that information isn’t privileged, harmful, or what a layperson would tend to think of as “confidential.”

Once a lawyer declines a prospective client’s representation, or once a current client becomes a former client, the obligation to maintain the confidentiality of acquired information remains intact, except in the case of an applicable exception. One of those exceptions for former clients is found in Prof.Cond.R. 1.9(c)(1): Attorneys may use information relating to a former client’s representation to his or her disadvantage if an exception in the rules applies, or if that “information has become generally known.” This term isn’t defined in the Rules of Professional Conduct, but on December 15, 2017, the ABA issued Formal Opinion 479, providing guidance on this issue (note: Model Professional Conduct Rule 1.9(c)(1), addressed in the ABA Opinion, and Ohio Professional Conduct Rule 1.9(c)(1) are substantively identical).

The ABA opinion provides that “Information that is publicly available is not necessarily generally known.” Rather, to be generally known, information can either be widely recognized within the relevant geographic region (as evidenced by publication in traditional media; on websites; or on social media) or widely recognized within the former client’s industry, profession, or trade (as evidenced by announcement, discussion, or publication in an industry medium, even if unknown to the public at large). However, “the fact that…information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes.”

Notably, Prof.Cond.R. 1.9(c)(1) is the only place in the Rules of Professional Conduct that creates an exception for confidential information because it is generally known, and that exception relates only to the use of former-client information when representing another client. Attorneys otherwise remain obligated to abstain from the disclosure of prospective, current, and/or former client information in Prof.Cond.R. 1.18, 1.6, and 1.9(c)(2), absent another applicable exception.