• FOR THE PUBLIC
  • FOR LAWYERS
  • LICENSING & COMPLIANCE
  • NEWS & PUBLICATIONS
  • ABOUT US

ER 1.6 Confidentiality of Information

The Standard

A lawyer may not reveal information relating to the representation of a client, and a lawyer must make reasonable efforts to prevent inadvertent or unauthorized disclosure or access to client information.

The Limitation

A lawyer may disclose client information only if:  (1) the client gives informed consent; (2) the disclosure is impliedly authorized to carry out the representation; (3) the disclosure is permitted or required by an express provision of ER 1.6; or (4) as required by an ER 3.3 duty to take remedial measures.

FAQs

I just learned that my office accidentally sent client information to opposing counsel. What should I do?

Immediately notify opposing counsel of the mistake so that opposing counsel can appropriately deal with the inadvertently received information under ER 4.4. Communicate the accidental disclosure to the client, as ER 1.4 requires. Depending on the totality of circumstances, you may have to withdraw under ER 1.16.

I believe I have cause to report my client’s former lawyer for ethical misconduct, but my client does not want me to. May I report?

ER 1.6 trumps ER 8.3. Encourage the client to allow your report if it will not prejudice the client’s interests. Consider whether you can report without disclosing client information. But if not, and the client does not consent, then you are not required to report. See Ariz. Ethics Op. 90-13.

My client just told me he intends to kill the opposing party. Do I have a duty to report this?

Yes, if you reasonably believe it is necessary to prevent your client from causing death or substantial bodily injury. See ER 1.6(b).

I received a subpoena for information regarding a former client. Now what?

The duty of confidentiality survives the representation. See ER 1.9(c). Absent the former client's consent to disclosure, you should object to the subpoena. If the court overrules your objection, discuss with the client whether to seek review of that decision before you comply with the court order. See Comment 15 to ER 1.6 and Ariz. Ethics Op. 00-11.

I mostly telework from home. What confidentiality issues should I be concerned with?

A lawyer’s broad duty to protect client confidences requires extra vigilance in an irregular/remote work setting. Ensure your home practices and computer/internet systems are secure and safeguard the confidentiality of client communications and information/files. This may require consulting a competent technology expert. See ER 1.6(e) and Comment 22; ER 1.1 and Comment 6; Ariz. Ethics Ops. 09-04 and 05-04.

May I put a high-profile case on my website? This information is publicly available.

You’ll need your client’s informed consent. ER 1.6(a) prohibits a lawyer from revealing information relating to the representation of a client. This is true even for information that may otherwise be available to the public. See ABA Formal Op. 479.

I'm applying to be a Superior Court Commissioner. The application requires me to provide information about cases I've handled. I can do that related to court employment, right? Most of what I'll list is public record anyway.

ER 1.6 is very broad and does not contain an exception for this situation. You will need to obtain client consent to disclose in the application process any information related to representation.

My client has terminated my representation. What may I disclose to successor counsel as I transition the client and her file?

ER 1.6 applies to these communications and precludes disclosures, absent client’s informed consent or implied authorization. When in doubt, seek client’s consent as to what to disclose/provide to new counsel in your transfer of the representation. See (binding) Attorney Ethics Advisory Committee Ethics Op. EO-20-0001.

May I respond to a negative online review of my legal services?

A negative online review does not waive client confidentiality or trigger ER 1.6(d)(4)’s self-defense exception. Avoid engaging online.  Instead, simply invite the client to contact your office to discuss. See ABA Formal Opinion 496. Under certain circumstances, you might also contact the host site to seek removal of the content.

If the details of my former client’s case are now public record, am I free to discuss them?

Not without client consent. The duty of confidentiality survives the representation and there is no public records exception. See ABA Formal Op. 479.

Do I owe an ongoing duty of confidentiality to former and prospective clients too?

Yes, pursuant to ERs 1.9(c) and 1.18(b).

May I reveal case information I obtained from sources other than the client?

Not without client consent. ER 1.6 applies not only to client confidences but to all information relating to the representation, whatever its source, unless an exception in ER 1.6 authorizes disclosure.

I’ve determined I must disclose information despite my client’s objection. How do I do that?

Disclosing client information always should be narrowly tailored to the purpose/request. Further, use available protective measures, such as disclosing in camera, ex parte and/or under seal.

In a motion to withdraw, may I explain to the court why I’m terminating representation?

Motions to withdraw should be “quiet.” Listing the horrible things the client has does is a “noisy” withdrawal. Absent client’s informed consent to more, you should only state that “professional considerations require termination of the representation.” See Comment 3 to ER 1.16; see generally Maricopa Co. Public Def. v. Super. Ct, 187 Ariz. 162 (App. 1996).

This page is managed by Patricia Seguin