Can a lawyer share courtesy copies of public pleadings with other lawyers, or talk shop about cases, without first getting client consent?

Plain-English summary

The Committee was asked whether a lawyer may provide courtesy copies of pleadings or other public-record documents to other lawyers, or engage in general shop talk about pending or past cases, without first obtaining client consent. The opinion concluded that lawyers may do both, provided the lawyer reasonably believes the disclosures will not cause harm to the client.

The opinion acknowledged that Rule 1.6(a), read literally, reaches all information relating to the representation, whatever its source, and would ban the informal exchanges that have traditionally educated new lawyers and circulated developments in the law. Rejecting that literal reading, the opinion adopted the approach of Professor Wolfram: the rule should be read to prohibit only those needless revelations of client information that incur some risk of harm to the client, because prohibiting innocuous talk would be senseless and would trivialize the confidentiality principle.

The opinion was careful to limit its conclusion. It stated that its view does not endorse idle gossip or license indiscriminate disclosure for "titillation or braggadocio," that lawyers must always be cautious when disclosing any information relating to a representation, and (in a footnote) that a cautious lawyer should delete from documents and discussions any client-identifying information not relevant to the disclosure.

Currency note

This opinion was issued in 1995, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did a lawyer need client consent to hand another lawyer a copy of a filed pleading?

A: No. The opinion concluded a lawyer may provide courtesy copies of documents in the public record on request, provided the lawyer reasonably believes the disclosure will not harm the client.

Q: Was casual shop talk about cases prohibited by the confidentiality rule?

A: No, not categorically. The opinion read Rule 1.6 to bar only disclosures carrying some risk of harm to the client, so innocuous informal exchanges between lawyers were permitted.

Q: Did the opinion put any limits on what could be shared?

A: Yes. It stressed that lawyers must be cautious, that the conclusion does not license disclosure for gossip or bragging, and that a cautious lawyer should remove client-identifying information not relevant to the disclosure.

Background and rules framework

The opinion interpreted Alaska Rule of Professional Conduct 1.6 (Model Rule 1.6, confidentiality of information), specifically Rule 1.6(a)'s bar on revealing information relating to the representation absent consent or an enumerated exception. It read the rule's scope against its purpose of encouraging full and frank client disclosure, citing scholarly and judicial authority, and adopted a harm-based limiting construction rather than the literal text.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Alaska RPC 1.6(a) (confidentiality of information relating to the representation)

Cases:

• Upjohn Co. v. United States, 449 U.S. 383 (1981), purpose of the confidentiality privilege

Other authority:

• C.W. Wolfram, Modern Legal Ethics 6.7 (1986)

See also

• Alaska Ethics Op. 2019-1: Obtaining Confidential Information
• Alaska Ethics Op. 2018-1: CC and BCC of Client Email to Opposing Counsel
• Alaska Ethics Op. 2014-3: Cloud Computing and the Practice of Law

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/95-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 95-1
Propriety of Shop Talk and Courtesy Copies Under ARPC 1.6
(Confidentiality of Information).
The Committee has been asked whether a lawyer may provide courtesy
copies of pleadings or other documents in the public record to other lawyers, or
may engage in general "shop talk" about pending or past cases with other
lawyers, without first obtaining the express consent of the clients involved in
the cases. The Committee's conclusion is that lawyers may provide courtesy
copies of public documents upon request and also engage in informal
exchanges of information, provided the lawyer reasonably believes the
disclosures will not cause harm to the client. Alaska Rule 1.6(a) should be
interpreted to bar disclosure of client information when a lawyer would
reasonably know that disclosure of the information carries some risk of harm
to the client's interest or is a client confidence.
Alaska Rule of Professional Conduct 1.6(a) provides that:
A lawyer shall not reveal information relating to representation of a client unless the
client consents after consultation, except for disclosures that are impliedly authorized in
order to carry out the representation, and except as stated in paragraph (b) or Rule 3.3
(a)(2).
Alaska Rule 1.6 is based on ABA Model Rule 1.6. It expresses the lawyer's
ancient duty of confidentiality, which is intended to enhance the quality of legal
representation by encouraging clients to fully and frankly disclose all matters
that may be relevant to the representation. See, Hazard, An Historical
Perspective on the Attorney Client Privilege, 66 Cal. L. Rev. 1061 (1978) and
Upjohn Co. v. United States, 449 U.S. 383 (1981).
There are three principal exceptions to the duty of confidentiality under
Alaska's Rule 1.6: "crime prevention;" the duty of disclosure to the tribunal
when necessary to avoid assisting a client's criminal or fraudulent act; and the
right of "self-defense" to a criminal charge or civil claim against the lawyer
based on the client's conduct. None of these come into play in this opinion. The
issue here is whether a lawyer may generally discuss cases and clients with
other lawyers, and provide copies of pleadings or other documents in the public
record, without running afoul of the rule.
The scope of Alaska's Rule 1.6 can be interpreted to cover all "information
relating to the representation" that comes to a lawyer, no matter whether the
information is what are commonly considered client confidences, and no matter
whether the information came from the client or from another source entirely:
The confidentiality rule applies not merely to matters communicated in confidence by the
client but also to all information relating to the representation, whatever its source.
-1-

Commentary, Alaska Rule of Professional Conduct 1.6 (quoting ABA
Commentary, Model Rule 1.6).
A literal application of the rule would undoubtedly prohibit the exchange
of pleadings and opinions that relate in any manner to a lawyer's
representation of a client, as well as forbidding "shop-talk," "war stories," and
other such informal exchanges of information between lawyers. As noted by the
lawyer who requested our opinion, informal communication has been
traditionally employed in Alaska to educate new lawyers, to circulate
information about important developments in the law, and to maintain
courteous relations between the learned practitioners of our sometimes
fractious profession. Literal application of Rule 1.6 would ban these valuable
routes of intra-professional communication. (endnote 1)
The literal approach has been the subject of much criticism by the
commentators, as best exemplified by Professor Wolfram:
[T]he expectation of confidentiality posited by the rationale of loyalty to client justifies
prohibiting a lawyer from revealing information only if it poses a risk of harm to a
client's interests. Yet [Model Rule] 1.6, if read literally, goes much farther and prohibits a
lawyer from revealing all client information, the good or neutral along with the
potentially harmful. The only imaginable reason for such a universal prohibition is to
provide prophylactic protection against lawyer misjudgments about which revelations are
potentially harmful to a client's interests.
Yet is it hardly imaginable that [Model Rule] 1.6 should be read literally to prohibit a
lawyer from revealing absolutely any information about a client except in the limited
exceptions explicitly provided in the rule. . ..
[T]o prohibit innocuous talk about a client would be senseless, would create morbid
secretiveness among overscrupulous lawyers, and, by trivializing it, would detract from
the soundness of the confidentiality principle. Instead, [Model Rule) 1.6 should be read to
prohibit those needless revelations of client information that incur some risk of harm to
the client.
C.W. Wolfram, Modern Legal Ethics S 6.7, at 301 (1986).
The committee agrees with Professor Wolfram's approach to this issue.
(endnote 2) The Committee's view is not meant to endorse idle gossip nor to
grant license to lawyers to indiscriminately disclose client information for
purposes of "titillation or braggadocio." Wolfram, supra. Lawyers must always
be cautious when disclosing any information relating to the representation of
their clients. However, Alaska Rule 1.6 does not prohibit informal
communication or the exchange of public documents between counsel.
(endnote 3)

-2-

Approved by the Alaska Bar Association Ethics Committee on November
3, 1994.
Adopted by the Board of Governors on January 13, 1995.
Endnotes:

1. Literal interpretation of the rule has led to some extreme results. The
   Rhode Island Supreme Court held that Rule 1.6 precluded a lawyer from
   reporting embezzlement of client funds by a former lawyer over the
   client's objection. (In re Ethics Advisory Panel Opinion, 627 A.2d 317 (R.I.
   1993)). The D.C. Bar ethics committee opined that lawyer misconduct
   may not be disclosed to discipline counsel if "it would entail a disclosure
   of information otherwise protected by Rule 1.6," (D.C. Bar Legal Ethics
   Committee, Op. 246, 4/19/94).
2. N.b., the Alaska Rules Commentary includes the following caveat:
   A lawyer is impliedly authorized to make disclosures about a client when
   appropriate in carrying out the representation, except to the extent that
   the client's instructions or special circumstances limit that authority.
   Commentary, Alaska Rule 1.6 ("Authorized Disclosure") (emphasis
   added).
3. The Committee believes that a cautious lawyer should delete from
   documents and discussions all information that might identify the client
   and that is not relevant for purposes of the disclosure.

-3-