Ezel / Ethics Opinions / ABA
ABA December 15, 2017

When can a lawyer use a former client's information because it is 'generally known'?

Short answer: Only when the information is widely recognized by the public in the relevant area or within the former client's industry or trade. The opinion concludes that information is not 'generally known' just because it is publicly available, in a court record, or findable with special effort, and the exception permits use of the information, not its disclosure.

Apply this to your situation

This page answers the general question as of 2017. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2017
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The opinion interprets the "generally known" exception in Model Rule 1.9(c)(1), which lets a lawyer use a former client's information to that client's disadvantage once the information has become generally known. It first distinguishes the two parts of Rule 1.9(c): 1.9(c)(2) governs revealing or disclosing former-client information and carries the same duties as Rule 1.6, while 1.9(c)(1) governs use and contains the exception at issue. The opinion stresses that "the generally known exception applies only to the 'use' of former client confidential information," not to its disclosure.

Because "generally known" is not defined in the Rules, the opinion surveys courts, bar opinions, and the Restatement, and finds broad agreement that "information that is publicly available is not necessarily generally known." It adopts a two-part working definition: information is generally known if it is widely recognized by members of the public in the relevant geographic area, or widely recognized in the former client's industry, profession, or trade. The opinion notes that "information may be widely recognized within a former client's industry, profession, or trade without being widely recognized by the public," so the second route can apply even when the public at large is unaware of the information.

The opinion draws sharp limits. It states that information discussed in open court or available in court records, libraries, or other public repositories is not, standing alone, generally known. It adds that "certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1)," and that "for information to be generally known it must previously have been revealed by some source other than the lawyer or the lawyer's agents."

In practice

Under this opinion, a lawyer evaluating whether the Rule 1.9(c)(1) exception applies asks whether the information is widely recognized by the public in the relevant area or within the former client's field, as the opinion frames it under the Model Rule as it stood in 2017. The opinion holds that mere public availability, presence in a court record, or findability through specialized effort does not make information generally known, and that the exception authorizes use of the information rather than its disclosure, which remains governed by Rule 1.9(c)(2).

Common questions

Q: Does the "generally known" exception let me disclose a former client's information?

A: No. The opinion holds the exception applies only to the use of former-client information under Rule 1.9(c)(1); disclosure or revelation remains governed by Rule 1.9(c)(2) and Rule 1.6.

Q: Is information "generally known" just because it is in a public court record?

A: Per the opinion, no. Information discussed in open court or available in court records or other public repositories is not, standing alone, generally known.

Q: Can information be "generally known" if the general public has never heard of it?

A: Yes. The opinion concludes information widely recognized within the former client's industry, profession, or trade is generally known even if the public at large is unaware of it.

Q: What if the information is public but hard to find?

A: The opinion says that is not enough. Information that is publicly available but requires specialized knowledge or expertise to locate is not generally known.

Background and rules framework

The opinion interprets Model Rule 1.9 (duties to former clients), focusing on Rule 1.9(c)(1) (use of former-client information, with the "generally known" exception) and Rule 1.9(c)(2) (revealing former-client information). It reads these against Model Rule 1.6 (confidentiality of current-client information), to which Rule 1.9(c)(2) ties the disclosure duty.

Citations and references

Rules of Professional Conduct:

  • ABA Model Rule 1.9 (former clients), including 1.9(c)(1) and 1.9(c)(2)
  • ABA Model Rule 1.6 (confidentiality)

Other opinions cited:

  • NYSBA Ethics Op. 991 (2013) and Op. 1125 (2017): information not generally known merely because in the public domain
  • Illinois State Bar Ass'n Advisory Op. 05-01 (2006): "common knowledge in the community"
  • Texas Ethics Op. 595 (2010): public-record information may not be generally known
  • Restatement (Third) of the Law Governing Lawyers § 59 cmt. d (2000)

See also

Source

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