What kinds of client information does Rule 1.6 stop a lawyer from disclosing?

Plain-English summary

The Committee answered a single question: what types of client information does Rule 1.6 restrict a lawyer from revealing? Its answer was "ALL information relating to the representation of the client." Rule 1.6(a) bars a lawyer from revealing information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or it is permitted under paragraphs (b) and (c).

The opinion stresses that this ethical duty is much broader than the attorney-client privilege under NRS 49.185. Quoting Comment [3] to ABA Model Rule 1.6, it explains that Rule 1.6 prohibits a lawyer from volunteering any information relating to the representation, while the privilege only prevents a lawyer from being compelled to reveal confidential communications. The opinion identifies three "remarkable omissions" from the historical confidentiality rule (former DR 4-101): Rule 1.6(a) drops the qualifier "confidential," it does not require the information to be "adverse" to the client, and it contains no exception for information already generally known or public.

Reading these features together, the Committee found that even the mere identity of a client is protected, and the rule applies (1) even if the client never asked that the information be kept confidential, (2) even if the information is not privileged, (3) regardless of when the lawyer learned it, (4) even if it is not embarrassing or detrimental, (5) whatever the source, and (6) even if the information is already generally known or public. At the same time, the Committee believed the rule's absolute wording was not literally meant to make every innocuous disclosure a violation; it intended to strongly caution lawyers to consider confidentiality, and whether the client's informed consent should be obtained, before any verbal, written, or electronic communication relating to the client. The opinion suggests common sense should inform Rule 1.6 and that a lawyer should not be disciplined for a harmless disclosure.

To illustrate, the opinion lists common situations that raise Rule 1.6 issues absent client consent, offered as "food for thought" rather than as per se violations: leaving a message about the representation with a client's roommate or spouse; submitting billing statements to support a fee application; submitting a client list to a bank for a loan; listing clients in a firm brochure or in Martindale-Hubbell; processing a credit card payment that reveals client identity; taking a client file to a copy shop or using outside computer tech support; insurance-auditor review of defense billing; and Open Records Act requests for billing statements of a public entity represented by outside counsel.

In practice

The opinion holds that, under the Nevada rule as it stood at the time, the confidentiality duty in Rule 1.6(a) reaches all information relating to a client's representation, well beyond privileged communications, and is not limited by whether the information is adverse, embarrassing, or already public. The Committee framed its conclusion as a caution: in view of the unrestricted language of Rule 1.6, lawyers should pause and think before revealing any information relating to a representation unless the client has given informed consent.

Common questions

Q: Does Rule 1.6 only protect privileged or confidential communications?

A: No. The opinion concluded the duty covers all information relating to the representation, which is broader than the attorney-client privilege under NRS 49.185; the privilege bars compelled disclosure of confidential communications, while Rule 1.6 bars volunteering any information relating to the representation.

Q: Is information still protected if it is already public or generally known?

A: Per the opinion, yes. The Committee identified the absence of a public-information exception as one of three notable omissions from the historical rule, so on its face Rule 1.6 protects even already-public information unless an exception or consent applies.

Q: Is a client's identity protected?

A: The opinion states that even the mere identity of a client is protected by Rule 1.6, citing situations like client lists submitted to a bank or processing a credit card payment that reveals who the client is.

Q: Does a harmless or laudatory comment about a client violate the rule?

A: The opinion observes that, read literally, even a laudatory comment may violate the letter of the rule, but the Committee believed the rule was not meant to make every innocuous disclosure a violation and that a lawyer should not be disciplined for a harmless disclosure.

Background and rules framework

The opinion interprets Nevada Rule of Professional Conduct 1.6 (confidentiality of information), contrasting it with the attorney-client privilege under NRS 49.185 and with the predecessor disciplinary rule DR 4-101, which had protected "confidences and secrets." It draws on Comment [3] to ABA Model Rule 1.6 and on secondary authorities for the proposition that the ethical duty is broader than the evidentiary privilege.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Nev. RPC 1.6 (confidentiality of information)
• Former ABA Model Code DR 4-101 (predecessor confidentiality rule)

Statutes:

• NRS 49.185 (attorney-client privilege)
• NRS Chapter 239 (Nevada Open Records Act)

Cases:

• Lawyer Disciplinary Bd. v. McGraw, 461 S.E.2d 850 (W. Va. 1995), scope of confidentiality
• In re Advisory Opinion No. 544 of the New Jersey Supreme Court, 511 A.2d 609 (1986), client identity and confidentiality

See also

• NV Ethics Op. 9: confidentiality duties of insurance-defense counsel
• ABA Formal Op. 479: the "generally known" exception to former-client confidentiality

Source

• Landing page: https://nvbar.org/for-lawyers/ethics-discipline/ethics-opinions/
• Original PDF: https://nvbar.org/wp-content/uploads/opinion_41.pdf