Can a New Hampshire lawyer disclose the identity of a client without violating the Rules of Professional Conduct?

Plain-English summary

The Committee was asked whether a lawyer would violate the Rules by disclosing the identity of a client. The opinion answers yes, unless a Rule 1.6 exception applies. It reasons that Rule 1.6's protection of "information related to the representation of a client" includes the client's identity, and that Rule 1.6 does not distinguish between confidential and non-confidential information; the identity is protected regardless of whether it would otherwise seem sensitive.

The opinion identifies the routes to permissible disclosure. A lawyer may reveal a client's identity with the client's voluntary informed consent, or where disclosure is impliedly authorized in order to carry out the representation, and Rule 1.6 contains other limited exceptions to the general prohibition.

The protection is not limited to current clients. Subject to the Rule 1.6 exceptions, the opinion concludes that Rules 1.6 and 1.9 protect the identity of a former client, and Rules 1.6, 1.9, and 1.18 protect the identity of a prospective client from whom the lawyer received or reviewed information even though no lawyer-client relationship resulted.

In practice

The opinion concludes that, under the New Hampshire Rules as they stood when it issued, a client's identity is presumptively protected by Rule 1.6 and may be disclosed only with informed consent, when impliedly authorized to carry out the representation, or under another Rule 1.6 exception. It applies the same protection to former clients via Rule 1.9 and to prospective clients via Rule 1.18, and treats Rule 1.6's reach as covering all information related to the representation without a confidential/non-confidential distinction.

Common questions

Q: Is a client's identity confidential under the New Hampshire rules?

A: Yes, presumptively. The opinion concludes that a client's identity is information related to the representation protected by Rule 1.6, regardless of whether it would otherwise be considered confidential.

Q: When can a lawyer reveal who their client is?

A: The opinion says a lawyer may disclose a client's identity with the client's voluntary informed consent, when the disclosure is impliedly authorized to carry out the representation, or under another limited Rule 1.6 exception.

Q: Does the protection apply to former clients?

A: Yes. The opinion states that, subject to the Rule 1.6 exceptions, Rules 1.6 and 1.9 prohibit disclosing the identity of a former client.

Q: What about someone who consulted the lawyer but never became a client?

A: The opinion concludes that, subject to the exceptions, Rules 1.6, 1.9, and 1.18 protect the identity of a prospective client from whom the lawyer received or reviewed information even if no representation followed.

Background and rules framework

The opinion interprets New Hampshire Rule 1.6 (confidentiality of information), reading its protection of "information related to the representation" to include a client's identity and to apply without distinguishing confidential from non-confidential information. It extends the analysis through Rule 1.9 (former clients) and Rule 1.18 (prospective clients).

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NH Rule 1.6 (confidentiality of information)
• MR 1.9 / NH Rule 1.9 (duties to former clients)
• MR 1.18 / NH Rule 1.18 (duties to prospective clients)

See also

• Illinois State Bar Op. 97-01: Disclosing Client Identity
• Oklahoma Bar Op. 136: Refusing to Disclose a Client's Identity to Customs
• Ohio Board of Professional Conduct Op. 1990-004: Client Identity on IRS Form 8300

Source

• Landing page: https://www.nhbar.org/ethics/opinion-2019-20-01
• Original PDF: https://nhba.s3.amazonaws.com/wp-content/uploads/2020/06/14110337/EO-2019-20-01-Rule-1.6-Opinion-FINAL-1-4-20-BOG.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.
NEW HAMPSHIRE BAR ASSOCIATION
Rule 1.6 Disclosure of a Client’s Identity
Ethics Committee Opinion #2019-20/01

ABSTRACT:

Unless one of the exceptions in Rule 1.6 applies, Rule 1.6 prohibits the disclosure of the identity

of a client.

ANNOTATIONS:

Rule 1.6’s phrase “information related to the representation of a client” includes the identity of a

client.

Rule 1.6 does not distinguish between confidential information and non-confidential information.

An attorney may disclose the identity of a client after obtaining the client’s voluntary informed

consent.

An attorney may disclose the identity of a client if the disclosure is “impliedly authorized in

order to carry out the representation” of the client.

Rule 1.6 contains other limited exceptions to the general prohibition against revealing the

identity of a client.

Subject to the exceptions contained in Rule 1.6, Rules 1.6 and 1.9 prohibit the disclosure of the

identity of a former client.

Subject to the exceptions contained in Rule 1.6, Rules 1.6, 1.9 and 1.18 prohibit the disclosure of

the identity of a prospective client from whom the lawyer receives or reviews information but

with whom no lawyer-client relationship ensues.

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Rule 1.6 and the Disclosure of a Client’s Identity

     The Ethics Committee was asked whether a lawyer would violate the Rules of

Professional Conduct by disclosing the identity of a client. The answer is yes, unless one of the

exceptions in Rule 1.6 applies to the particular situation.1

     Rule 1.6 provides that “[a] lawyer shall not reveal information related to the

representation of a client unless the client gives informed consent, the disclosure is impliedly

authorized in order to carry out the representation, or the disclosure is permitted [under the

enumerated exceptions listed in the Rule].”

     The answer to the question turns on whether the client’s identity is “information related

to the representation of a client.” The term “information” is not defined in Rule 1.0, and Rule

1.6 does not expressly state that the identity of a client is among the information it protects. Rule

1.6 uses the broad term “information” without categorizing any information as “confidential” or

“non-confidential.” All information, therefore, is protected so long as it is “related to the

representation of a client.” See ABA Model Rule 1.6, Cmt. 3 (“The 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.”). And although the Rule is

perhaps most intuitively applied to substantive information that a lawyer has learned from the

client, the client’s identity is itself “related to the representation” under a plain reading of that

language.

1
We note at the outset that this opinion deals solely with the question of whether a client’s identity is protected by
the Rules of Professional Conduct. This question should not be confused with the somewhat related question of
whether a client’s identity is protected by the attorney-client privilege. See, e.g., In re Advisory Opinion No. 544,
103 N.J. 399, 407-08 (1986) (“[A] client’s identity per se might not be necessarily considered a privileged
communication as such . . . .”).

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This plain reading finds support in the ABA’s comments to Model Rule 1.6. Comment 4,

for example, explains that the Rule permits an attorney to “use . . . a hypothetical to discuss

issues relating to the representation . . . so long as there is no reasonable likelihood that the

listener will be able to ascertain the identity of the client or the situation involved” (emphasis

added). The language of Rule 1.6(b)(5) also supports this conclusion, limiting the information

that may be shared to detect or resolve conflicts of interest. See ABA Model Rule 1.6, Cmt. 13

(stating that Rule 1.6(b)(5) encompasses only “limited information” that includes a client’s

identity—the implication being that such information ordinarily cannot be disclosed under the

Rule). 2

       When the underlying purpose of Rule 1.6 is taken into account, the matter becomes

clearer still. As explained in Comment 2 to ABA Model Rule 1.6, the protection afforded to

information relating to the representation “contributes to the trust that is the hallmark of the

client-lawyer relationship” and encourages clients “to seek legal assistance and to communicate

fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.”

There are many contexts in which revealing the mere identity of a client could indirectly reveal

sensitive information about the client’s personal life that the client would not want others to

know, thereby damaging that trust and discouraging full and frank lawyer-client

communications. Consider, for example, a client who approaches a lawyer about a potential

divorce. Such a client would undoubtedly expect the lawyer not to reveal substantive

information that the client shares with the lawyer but would also probably not want it known that

the client has met with and retained a divorce lawyer. Similarly, a business would not expect the

2
Comment 13 refers to Rule 1.6(b)(7), which is the ABA analog to New Hampshire Rule 1.6(b)(5).

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white-collar criminal defense lawyer who it hired to conduct an internal investigation of possible

criminal activities to reveal the existence of such a client-lawyer relationship.

   Many jurisdictions have addressed this topic, perhaps none more comprehensively than

the New Jersey Supreme Court in In re Advisory Opinion No. 544, 103 N.J. 399, 408 (1986).

The court considered Rule 1.6 and the identity of a client in the context of a legal services

organization that provided representation to mentally impaired or disabled and indigent persons.

The court explained that disclosure of clients’ identities “would be tantamount to the revelation

of the mental and financial status of the individuals, as well as the fact that he or she has a legal

problem that required the services of an attorney,” and that “depending upon the nature of such

additional or collateral information that is revealed by the disclosure of a client’s identity, the

need for confidentiality could appropriately cloak even identity.” In re Advisory Opinion No.

544, 103 N.J. at 408. Thus, the court concluded that in this context

   client information that serves to identify the client would clearly be protected
   under [Rule 1.6]. As noted, this rule accords confidentiality to any information
   relating to the representation of a client. Manifestly this would include a client's
   identity.

           Accordingly, we hold that under current standards governing attorney
   conduct, client-identity may not be disclosed to any private or public funding
   agency in the absence of appropriate consent or other legal justification. In so
   ruling, we determine that a client's identity constitutes information relating to the
   representation of a client under the current Rules of Professional Conduct . . . .

Id. at 409; see also In re Goebel, 703 N.E.2d 1045, 1047 (Ind. 1998) (“‘[I]nformation relating to

the representation of a client,’ as stated in Prof. Cond. R. 1.6(a), is a broad definition and has

been construed to include all information relating to the representation regardless of the source.

Thus, ‘information’ may include the identity or whereabouts of a client.”) (alteration in original)

(citation omitted).

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Many other jurisdictions have similarly concluded that Rule 1.6 protects a client’s

identity. See, e.g., Wisconsin Professional Ethics Committee Opinion EF-17-02 (Apr. 4, 2017)

(client identity is protected by Wisconsin Supreme Court Rule 20:1.6); Ohio Bd. of Professional

Conduct Opinion 2016-08 (Oct. 7, 2016) (noting that Rule 1.6 “prohibit[s] the release of . . . the

client’s identity without the client’s consent”); Missouri Informal Advisory Opinion 2015-09

(2015) (opining that attorney could not disclose client names on financial disclosure form

because client name is among the confidential information protected under Missouri Rule 4-1.6);

Pennsylvania Ethics Opinion 2008-1 (2008) (opining that Rule 1.6 prohibits revealing the

identity of clients by publishing their photographs on website); Connecticut Informal Ethics

Opinion 99-40 (1999) (opining that client’s name, address, and telephone number were

information relating to the representation and thus protected under Rule 1.6); Connecticut

Informal Ethics Opinion 99-35 (1999) (opining that lawyer could not reveal clients’ names to

credit counseling service without clients’ consent); Rhode Island Ethics Advisory Panel Opinion

95-61 (Jan. 11, 1996) (opining that attorney could not turn over an accounts receivable list

including client names to government agency without client consent because “[t]he identity of a

client is confidential information and is protected under Rule 1.6”); but see Hunter v. State Bar

ex rel. Third Dist. Comm., 744 S.E. 2d 611 (Va. 2013) (concluding that an attorney’s disclosure,

in a blog, of information not protected by the attorney-client privilege, including clients’

identities, was commercial speech protected by the First Amendment and Rule 1.6 could not be

interpreted to prohibit an attorney from disclosing such information).

   Prohibiting disclosure of a client’s identity under Rule 1.6 does not hinder an attorney

from representing a client, as Rule 1.6 has several exceptions. The lawyer may obtain informed

consent from the client so long as “the client fully understands the scope of the impact of

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consent, that consent is totally voluntary, and that client can deny consent without any sense of

guilt or embarrassment.” In re Advisory Opinion No. 544, 103 N.J. at 408 (citing ABA Informal

Opinion 1287 (1974)); cf. Rule 1.0(e) (defining informed consent). Also, Rule 1.6(b) contains

several specific contexts in which a lawyer may reveal information relating to a client.

   The broadest and most commonly used exception is when “the disclosure is impliedly

authorized in order to carry out the representation.” When a lawyer negotiates with adversaries

or represents a client in court or before a municipal or administrative agency, the lawyer is

impliedly authorized to reveal the identity of the client. However, while the lawyer may have

been impliedly authorized to file a pleading identifying the client, subsequent disclosures of the

client’s identity are subject to Rule 1.6. Simply because a publicly available pleading is filed in

court or a representation is made during a public hearing before a governmental body, the

pleading or representation may not become known to a large number of people. The lawyer

must consider whether each subsequent disclosure of the client’s identity is “impliedly

authorized in order to carry out the representation.” Rule 1.6(a) (emphasis added); see also

Wisconsin Professional Ethics Committee Opinion EF-17-02 (“If the publicly disclosed (or

available) information relates to the representation of a client, it is protected by [Rule 1.6].”).

The lawyer’s analysis should include whether the client would approve of the disclosure,

whether the client could be prejudiced by the disclosure, and whether the disclosure is in

furtherance of the representation.

   The protection of Rule 1.6 also applies to former clients and to prospective clients even

when no lawyer-client relationship ensues. Rule 1.9 identifies a lawyer’s duties to former

clients. Under Rule 1.9(c)(2), “[a] lawyer who has formerly represented a client in a matter or

whose present or former firm has formerly represented a client in a matter shall not

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thereafter . . . reveal information relating to the representation except as these Rules would

permit or require with respect to a client.” Thus, the identity of a former client is protected by

Rule 1.6 unless one of that Rule’s exceptions apply.

   With regard to a prospective client from whom the lawyer receives or reviews

information but with whom no lawyer-client relationship ensues, Rule 1.18(b) directs that the

lawyer “shall not use or reveal that information except as Rule 1.9 would permit with respect to

information of a former client.” Rule 1.9’s and Rule 1.18’s use of the broad term “information”

leaves no doubt that the “information” referred to is all of the information protected by Rule 1.6,

including the identity of the former or prospective client.

NH RULES OF PROFESSIONAL CONDUCT:

Rules 1.6, 1.9, 1.18

SUBJECTS:

Confidentiality

Client information

• By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors at its January 6,
2020 meeting.

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