We have written previously (here and here) about the relationship between public records and a lawyer’s duty to maintain confidentiality for clients. As we’ve written, just because something is a public record, that doesn’t mean it’s not confidential information in the lawyer’s hands (under Rule 1.6).

Under a proposed amendment to Rule 1.9, a lawyer may use or reveal information relating to the representation of a former client if the information is 1) contained in a public record, 2) disclosed at a public hearing, or 3) otherwise publicly disseminated, and if the disclosure would not likely be embarrassing or detrimental to the former client.

A few thoughts –

  • Note that this is only a change regarding duties to a former client. It doesn’t change the duties to current clients.
  • By virtue of this proposed exception, we can see more clearly that information in a public record cannot be disclosed by a lawyer with respect to a current client, unless the client provides informed consent. And if the Supreme Court does not approve the change, it will be evidence that there is no “public record exception” to confidentiality for former clients, either.
  • The comment to the proposed rule makes clear that the client’s interest takes precedence when a lawyer evaluates whether the information would be “embarrassing or detrimental.”
  • The phrase “publicly disseminated” essentially takes the place of the existing rule’s reference to information that is “generally known.” A great deal of information that is “publicly disseminated” is not “generally known,” so this new language appears to give lawyers further leeway. And apparently some information “disclosed at a public hearing” has not been “publicly disseminated?” No matter, I suppose.

We should repeat that this rule change is not yet in effect and is pending approval  before the State Supreme Court.

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