Can a lawyer disclose a client's confidential information to prevent harm or a crime, and is information learned after the representation ended still confidential?
NY State Bar Ethics Opinion 866: Disclosing Confidences to Prevent Harm
Short answer: A lawyer may, but is not required to, disclose a current or former client's confidential information when reasonably necessary to prevent reasonably certain death or substantial bodily harm or to prevent the client from committing a crime, and information acquired after a representation ends can be confidential if it relates to that representation.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The inquirer organized a company for two principals, Doe and Roe, by preparing organizing documents and filings, and believed that representation ended when the organizing work was done, though no termination letter was sent and the clients never expressly ended the engagement. The inquirer also separately represented Doe individually on an unrelated matter. After the company was organized but before it received an operating license, the inquirer overheard a conversation indicating the principals had failed to secure a license because the premises' water failed quality standards, and intended to submit a water sample from another location to pass the test. The inquirer asked whether the Rules required, prohibited, or permitted disclosure, and whether information learned after the representation ended could be confidential.
On the definition of confidential information, the committee explained that Rule 1.6(a) protects information "gained during or relating to" the representation, whatever its source, that is privileged, likely embarrassing or detrimental, or that the client asked be kept confidential. Whether the overheard conversation qualified depended on whether Doe and Roe (or Doe individually) were current or former clients, which the committee found factually unclear and addressed both ways. For a current client, information acquired "during" the representation is protected, though the committee read "during" to require some connection between the lawyer's work for the client and acquisition of the information, not a purely temporal test; it found the information traceable to the principals, satisfying any such connection. For a former client, the committee held that information acquired after the representation ends can be confidential if it "relates to" the representation, identifying factors such as whether the information grew out of specific aspects of the representation, came from the client or close associates, or was actively sought rather than learned accidentally.
On the exceptions, the committee held that disclosure was permissive at most. Rule 1.6(b)(1) lets a lawyer disclose to prevent reasonably certain death or substantial bodily harm, but it is discretionary ("may," not "must"), and on these facts, where the inquirer did not know whether the improper sample was even submitted or what was wrong with the actual water, it seemed unlikely the inquirer could form a reasonable belief that death or substantial bodily harm was reasonably certain. Rule 1.6(b)(2) lets a lawyer disclose to prevent a client's continuing or future crime, but not a completed or past crime, and whether a crime had been or would be committed is a question of law beyond the committee's jurisdiction. The committee also advised, consistent with Comment [6A], that the lawyer's initial step where practicable is to remonstrate with the client before disclosing.
In practice
The opinion holds that, under Rules 1.6 and 1.9(c) as they stood at the time, any disclosure of the client's confidential information is permissive, not mandatory: Rule 1.6(b)(1) (preventing reasonably certain death or substantial bodily harm) and Rule 1.6(b)(2) (preventing a client's continuing or future crime) both say the lawyer "may" disclose. The committee tied the harm exception to a reasonable belief that death or substantial bodily harm is reasonably certain, which it doubted the inquirer could form on the limited facts, and limited the crime exception to continuing or future crimes, treating whether a crime occurred as a legal question outside its jurisdiction. On scope, the committee held that current-client information is protected if acquired "during" the representation (with a connection beyond mere timing), and that former-client information acquired after the engagement ends is protected if it "relates to" the representation. It noted the lawyer's first step, where practicable, is to remonstrate with the client.
Common questions
Q: Must a lawyer disclose a client's confidence to prevent harm?
A: No. The committee held that Rule 1.6(b)(1) is discretionary; a lawyer "may," but is not required to, disclose to prevent reasonably certain death or substantial bodily harm.
Q: Can a lawyer disclose to prevent a client's crime?
A: A lawyer may disclose to the extent reasonably necessary to prevent a client's continuing or future crime under Rule 1.6(b)(2), but the committee held the exception does not reach a completed or past crime, and whether conduct is a crime is a legal question outside its jurisdiction.
Q: Is information I learn after a client's matter ends still confidential?
A: It can be. The committee held that under Rule 1.6(a) information acquired after a representation ends is confidential if it "relates to" that representation, depending on factors like whether it grew out of the representation, came from the client or close associates, or was actively sought.
Q: Does the death-or-harm exception apply when the lawyer is unsure of the facts?
A: The committee held it was unlikely to apply here, because the inquirer did not know whether the improper water sample was submitted or what was wrong with the water, making it hard to form a reasonable belief that death or substantial bodily harm was reasonably certain.
Background and rules framework
The opinion interprets New York Rule 1.6(a) (definition and duty of confidentiality), Rule 1.6(b)(1) and (2) (permissive disclosure to prevent death or substantial bodily harm and to prevent a client's crime), and Rule 1.9(c) (a former client's confidences are protected to the same extent as a current client's), corresponding to ABA Model Rules 1.6 and 1.9. The committee drew on Comments [6] through [6D] and the Restatement (Third) of the Law Governing Lawyers in construing "during" and "relating to."
Citations and references
Rules of Professional Conduct:
- MR 1.6 / NY Rule 1.6(a): definition and duty of confidentiality, information "gained during or relating to" the representation
- NY Rule 1.6(b)(1): permissive disclosure to prevent reasonably certain death or substantial bodily harm
- NY Rule 1.6(b)(2): permissive disclosure to prevent a client's crime (continuing or future, not past)
- MR 1.9 / NY Rule 1.9(c): protection of a former client's confidential information
Other opinions cited:
- N.Y. City 2002-1 (2002): interpreting a client's "intention to commit a crime" and continuing crimes
See also
- NY State Bar Ethics Op. 871: Opposing a Former Client
- NY State Bar Ethics Op. 898: Legal Advice to an Unrepresented Person
- NY State Bar Ethics Op. 867: Lender and Seller, Same Firm
Source
- Landing page: https://nysba.org/ethics-opinion-866/