A brief note about Rule 1.4 before we swing into the
much-more-substantively-amended Rule 1.6: Comment 4 to Rule 1.4 has been
amended to state not that “[c]lient telephone calls should be promptly returned
or acknowledged,” but that “a lawyer should promptly respond to or acknowledge
client communications.” So, yes, you have to answer emails and return telephone calls. But can you go back to soliciting clients via telegraph, which was specifically prohibited under the 1990 Rules, but now doesn’t rate a mention? Give it a try and let me know how it all works out.
On to Rule 1.6, which features new section (b)(7): a lawyer may reveal information relating to the representation of a client “to detect and resolve conflicts of interest if the revealed information would not prejudice the client.” This is a sensible addition to the suite of exceptions to the general confidentiality rule, as it is something that most lawyers might do anyway without thinking of it as a breach of confidentiality. Identifying or resolving conflicts tends to help clients, not hurt them, and that is what lawyers want to do.
The somewhat odd phrasing of the latter part of the rule gives rise to a concern about its implementation. The rule allows the disclosure of information “if the revealed information would not prejudice the client.” New comment 13 gives some examples of what is meant by that phrase:
…e.g., disclosure would compromise the
attorney-client privilege; the fact that a corporate client is seeking advice
on a corporate takeover that has not been publicly announced; that a person has
consulted a lawyer about the possibility of divorce before the person’s
intentions are known to the person’s spouse; or that a person has consulted a
lawyer about a criminal investigation that has not led to a public charge)…
The comment says that disclosure would be “prohibited” if it would be prejudicial in any of those ways. But what the comment is really describing is unusually sensitive information, not actions that would cause actual (or even potential) prejudice. Lawyers are always going to be the keepers of confidences (to use the old term) that the client wants to remain confidential; whatever those confidences are, they are important to the client for some reason. For the purposes of Rule 1.6, no one kind of information should
be seen as more potentially prejudicial than another, or as more or less worthy of the application of an exception like that in new Rule 1.6(b)(7). The application of that exception should not foreclose the ability of lawyers to resolve a conflict – in the context, for example, of a high-stakes business deal – just because the information
sought to be disclosed seems highly sensitive. What if the conflict, left unresolved, would be more prejudicial to the parties’ interests than a brief, limited, and well-protected disclosure of the information?
The task of the lawyers under the new exception should not be to avoid disclosing scandalous or weighty information even if doing so would resolve a serious conflict. Rather, the task should be to disclose only that information that would resolve the conflict in as limited a way as possible, with all available safeguards. Perhaps the information could be disclosed using encryption, or password-protected technology, to ensure that only certain people (the lawyers involved) had access to the information. The lawyers could agree to review their systems periodically to ensure that no hacking or other unauthorized access has occurred. They could also agree to delete the disclosed
information after a certain time or after an agreed-upon event occurs.
Whatever protections the parties settle on, the lawyers should focus more on the viability and security of those protections than on the specific nature of the information involved. Doing so would achieve the goals of Rule 1.6(b)(7): it would allow for clients to benefit via the amelioration of conflicts, while also preserving the confidentiality of their
sensitive information, whatever it may be.