On the Absurdity of Model Rule 1.9
Michael D. Cicchini
I recently considered writing a law review article about the legal issues in a former client’s criminal case. The article would have discussed only public information from pleadings, trial-court transcripts, and the published appellate court decision. In addition to being public in nature, all of this information was (and is) easily accessible by anyone, free of cost, via the Internet. The article itself would have criticized police, prosecutors, judges, and the criminal justice system, and would have continued to advocate for the client’s innocence.
Before the project even got off the ground, however, I vaguely recalled an ethical rule restricting an attorney’s ability to discuss his or her cases— even after those cases ended. I talked about this issue with fellow members of the bar, but no one had heard of such a rule. The consensus was that, obviously, an attorney can discuss events that happened in open court, are part of a published court decision, or are otherwise part of the public record. And as long as the attorney does not disclose confidential client communications or other non-public information, a lawyer’s First Amendment right of free speech would certainly trump any obscure rule that could possibly be buried in the voluminous ethics code.
Upon further investigation, however, I discovered my state’s version of ABA Model Rule 1.9, dealing with an attorney’s duty of confidentiality to former clients. The first prong of the rule prohibits an attorney from using “information relating to the representation” of the former client. However, there are exceptions: an attorney may use information when such use would not be “to the disadvantage of the former client”; and an attorney may use information that is already “generally known.” The second prong of the rule prohibits an attorney from revealing “information relating to the representation” of the former client; there are no exceptions listed under this prong.
At first glance, this rule did not seem overly restrictive, and my colleagues’ unanimous conclusion appeared to be correct. For the sake of argument I assumed that the public documents I wanted to write about would constitute information relating to the representation. However, I certainly would not have to worry about part one of the rule that prohibits the use of that information, as my article would in no way work to the client’s disadvantage. Further, even if it somehow did (in a way that I simply could not imagine), I would only be discussing information that was already generally known, so I would easily satisfy that exception instead
Neither would I have to worry about part two of the rule that prohibits the revelation of information. Using publicly available information to write a law review article is just that: using, rather than revealing, the information. In fact, it would be impossible to reveal what is already part of the public domain—especially in today’s electronic age where virtually anything can be accessed via the Internet. Additionally, I would not be revealing confidential client communications or other information that should be kept secret. And in this case, as in most criminal cases, that type of secret information didn’t even exist.
But if a dozen years of practicing criminal law has taught me anything, it is that rules often don’t mean what they clearly say. And in this case, as Part II of this Article demonstrates, Rule 1.9 does not mean anything remotely close to what it says.
To begin, courts interpret Rule 1.9 so broadly that every conceivable piece of information—including information that was not provided by the client and is not even about the client—constitutes information relating to the representation, is therefore protected, and cannot be used or revealed. Further, when a lawyer seeks to invoke one of the rule’s exceptions, courts routinely hold that the exceptions are not available for the lawyer’s contemplated use. And even when the exceptions are technically available, they are of little value. For example, not even widespread public information that is easily accessible via the Internet is considered to be “generally known,” and every imaginable use of the information is deemed to “disadvantage” the former client in some intangible way and is therefore prohibited.
But Rule 1.9 goes much further than preventing the would-be attorney-author from writing a law review article. In fact, all attorneys are affected by this incredibly broad rule on a near-daily basis. For example, the rule also prevents an attorney from presenting material at a continuing legal education seminar, engaging in “shoptalk” with colleagues, and even telling their family or friends what types of cases they have litigated. Worse yet, Rule 1.9 is so far-reaching and irrational that an attorney who attempts to comply with it would, in some cases, necessarily violate other, conflicting ethics rules.
The ethics rule of confidentiality wasn’t always this suffocating. Part II of this Article explains that, before Rule 1.9, the predecessor ethics rule sought to promote full communication between lawyer and client, and therefore protected a client’s “confidences and secrets” from disclosure. But then, without justification, Rule 1.9 expanded the scope of this protected information from “matters communicated in confidence by the client . . . to all information relating to the representation, whatever its source.”
Rule 1.9’s incredibly far reach serves no legitimate purpose and, worse yet, is often harmful—sometimes even to the clients the rule is supposed to protect. In light of this, Part III recommends reform of Rule 1.9 that is rooted in clients’ actual and reasonable expectations regarding confidentiality. In reality, a former client simply would not expect—and probably could never even imagine—that his or her attorney would be subjected to a perpetual gag-order with regard to public information (such as, for example, the client’s published appellate court case). Instead, what a former client would expect is that the attorney will keep the client’s confidences and secrets, and, when using or discussing publicly available information about the case, that the attorney remain loyal to the client’s interests.
Given clients’ actual and reasonable expectations, Rule 1.9 should be reformed—or, rather, merely reinterpreted—to permit an attorney to use or disclose already-public information about a former client’s case, provided that such use or disclosure is consistent with, or at least neutral with regard to, the former client’s position in that case. This would permit, among other things, an attorney’s use of pleadings, transcripts, and appellate court decisions to write a law review article about the legal aspects of a former client’s case.
This reinterpretation of Rule 1.9 also has the benefit of bringing order and structure to what is currently a chaotic, indecipherable, and unpredictable legal landscape. Equally important, Part IV demonstrates that this reinterpretation also satisfies other significant, but often overlooked interests. More specifically, allowing an attorney to discuss and write about public information from a former client’s case will enable effective continuing legal education for the profession, will serve the public’s interest in critical commentary about our legal system and public officials, and will restore the attorney’s First Amendment right of free political speech.
Model Rule 1.9 reads, in relevant part, as follows:
A lawyer who has formerly represented a client in a matter . . . shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except . . . when the information has become generally known; or (2) reveal information relating to the representation . . . .
When attempting to decipher this rule, the order of the analysis is important. The first question is what, exactly, constitutes information relating to the representation? Then, if the information falls within this protected category, the attorney must decide whether the contemplated course of conduct—for example, writing a law review article—would use, or instead reveal, that protected information. This use-reveal distinction is potentially important. The use-prong of the rule—that is, the prong that prohibits an attorney’s use of the information—contains two exceptions. Conversely, the reveal-prong of the rule offers the attorney no exceptions; instead, it appears to be absolute.
Once the attorney understands whether the information relates to the representation, and whether it would be used or revealed, the attorney can then explore the rule’s two explicit exceptions. Is the information already generally known? If it is, then the attorney may use (but not reveal) it. And if the information is not generally known, would the contemplated use be to the disadvantage of the former client? If it would not be, then, once again, the attorney may use (but not reveal) it.
Finally, if these two explicit exceptions are not applicable to the contemplated use of the information, or if the attorney wishes to reveal (rather than use) the information, the attorney can then consider whether some of Rule 1.9’s other, implied exceptions can be used.
In answering these questions, it will often be helpful to look to Rule 1.6, its comments, its annotations, and the cases and other legal authorities that interpret it. Rule 1.6 is, in relevant part, identical to Rule 1.9, except that Rule 1.6 pertains to current clients rather than former clients. In fact, court decisions often confuse Rules 1.6 and 1.9, or at least consider them to be interchangeable, and the comments and annotations of each rule even cite the other.
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