If a client's outside counsel guidelines ask a D.C. lawyer to disclose information about the lawyer's other clients, or to agree to withdraw if a midstream conflict arises, is that allowed?
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This page answers the general question as of 2022. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 383 (published April 2022) addresses three demands that institutional clients sometimes write into engagement letters and outside counsel guidelines (collectively, "OCGs"). The first is a commitment to tell the client, or seek its consent, before the lawyer takes on a competitor or an unrelated matter the client might care about. The opinion concludes that, absent informed consent, the D.C. Rules prohibit disclosing a client's or prospective client's protected information in connection with such a request. That protected information typically includes the identity of the other client or prospective client and the nature of that person's matter, both of which the opinion treats as confidences or secrets under Rule 1.6 (and, for a prospective client, Rule 1.18(b)).
The opinion goes further on the act of agreeing itself. Because Rule 8.4(a) prohibits not only violating the Rules but also attempting to do so, the Committee concludes that a lawyer who agrees to make a prohibited disclosure risks violating Rule 8.4(a) even if no disclosure ever occurs. An in-house lawyer who secures outside counsel's agreement to such a guideline may also be subject to discipline for knowingly inducing another to violate the Rules, and cannot avoid the restriction by routing the request through a non-lawyer. The opinion notes that a lawyer does not induce a violation if the request is conditioned on disclosure being consistent with the confidentiality rules, or if the lawyer reasonably believes the inquiry will not elicit protected information.
The opinion then addresses two other OCG provisions. On clauses requiring outside counsel to withdraw from another representation if a "midstream" conflict (one not reasonably foreseeable at the outset) arises, the Committee concludes that Rule 1.7(d), read with Rule 1.16, governs whether the lawyer must or may withdraw, not the advance agreement; withdrawal that would have a material adverse effect on the other client's interests is constrained by Rule 1.16(b). On clauses giving the client "full access" to the lawyer's records, the opinion concludes a lawyer may not permit access that might disclose other clients' confidences or secrets, which is a far cry from the client's entitlement to its own file.
In practice
Under this opinion, a D.C. lawyer asked to sign an OCG that would require disclosing information about other clients (their identity or the nature of their matters) may not make or promise that disclosure absent the affected client's informed consent, and the act of agreeing can itself implicate Rule 8.4(a). The opinion treats a client's identity and matter as confidences or secrets under Rules 1.6 and 1.18(b) where disclosure would be detrimental or the client asked that it be held inviolate.
On the two related OCG terms, the opinion concludes that a private advance agreement does not displace Rule 1.7(d) and Rule 1.16 in deciding whether a lawyer must withdraw on a midstream conflict, and that a clause granting "full access" to firm records cannot be honored to the extent the access would reveal other clients' confidences or secrets, which depends on the breadth of the clause and the architecture of the lawyer's recordkeeping systems.
Common questions
Q: Can I agree to an outside counsel guideline that says I will tell the client before representing one of its competitors?
A: The opinion concludes you may not disclose another client's or prospective client's protected information (including identity and the nature of the matter) without informed consent, and that even agreeing to make such a disclosure can violate Rule 8.4(a) as an attempt to violate the Rules.
Q: Is the identity of a client really confidential?
A: The opinion concludes a client's identity comes within Rule 1.6 at least where disclosure might be detrimental, and the nature of the representation is a protected secret and sometimes a confidence; the lawyer must err on the side of protecting information where doubt exists.
Q: Does an OCG clause requiring me to withdraw on a "midstream" conflict control whether I must withdraw?
A: No. The opinion concludes Rule 1.7(d) and Rule 1.16, not the advance agreement, govern whether the lawyer must or may withdraw, and that withdrawal having a material adverse effect on the other client's interests is limited by Rule 1.16(b).
Q: Can I give a client "full access" to my records if the OCG demands it?
A: The opinion concludes a lawyer may not permit access that might disclose confidences or secrets of other clients; the client is entitled to its own file, which is different from full access to records that may hold other clients' protected information.
Q: What if an in-house lawyer has a non-lawyer ask for the agreement instead?
A: The opinion concludes that does not help, because violating the Rules through the act of another is also prohibited under Rule 8.4(a).
Background and rules framework
The opinion interprets D.C. Rule 1.6 (confidentiality of a client's confidences and secrets), Rule 1.18(b) (the same protection for prospective clients), Rule 1.7(d) (midstream conflicts), Rule 1.16 (declining or terminating representation), and Rule 8.4(a) (it is misconduct to violate, attempt to violate, or knowingly induce another to violate the Rules, including through the act of another). The D.C. definition of "secrets" is broad, covering information gained in the professional relationship that the client asked be held inviolate or whose disclosure would be embarrassing or likely detrimental. The Committee expressly does not opine on whether lawyers may request or agree to OCG commitments generally; it addresses only the confidentiality, withdrawal, and records-access consequences.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.6 / Model Rule 1.6 (confidentiality of confidences and secrets)
- D.C. RPC 1.18(b) / Model Rule 1.18 (duties to a prospective client)
- D.C. RPC 1.7(d) / Model Rule 1.7 (conflicts arising during a representation)
- D.C. RPC 1.16 / Model Rule 1.16 (declining or terminating representation)
- D.C. RPC 8.4(a) / Model Rule 8.4 (violating, attempting, or inducing a violation)
Cases:
- In re Hager, 812 A.2d 904 (D.C. 2002), client identity within Rule 1.6 protection
- In re Asher, 772 A.2d 1161 (D.C. 2001), inducing another lawyer to mislead the court
- In re Fink, 22 A.3d 461 (Vt. 2011), contracting for an improper term can violate the rules even if not enforced
Other opinions cited:
- ABA Formal Op. 479 (2017): meaning of "generally known" information
- D.C. Bar Legal Ethics Op. 312 (2002): harmless information not protected
- D.C. Bar Legal Ethics Op. 309 (2001): confidentiality waivers not implied from conflict waivers
See also
- ABA Formal Op. 95-390: Conflicts in the Corporate Family Context
- DC Ethics Op. 390: Prior-Work Conflicts and Lawyer as Witness
- DC Ethics Op. 392: Candor to Tribunal and Confidentiality
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-383
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