![]() ![]() The Rule does not prohibit uses that do not disadvantage the client. For example, if a lawyer learns that a client intends to purchase and develop several parcels of land, the lawyer may not use that information to purchase one of the parcels in competition with the client or to recommend that another client make such a purchase. Paragraph (b) applies when the information is used to benefit either the lawyer or a third person, such as another client or business associate of the lawyer. ![]() ![]() Use of information relating to the representation to the disadvantage of the client violates the lawyer’s duty of loyalty. First, what is the difference between “using” client information and “revealing” it? In discussing the use of information related to a current representation (Rule 1.8(b)), comment to Rule 1.8 provides: Let’s take a closer look at the distinctions present in the various rules. (Rule 1.18, dealing with prospective clients, prohibits the use or disclosure of a prospective client’s information except as permitted by Rule 1.9.) Rule 1.9(c) is the only rule with an exception for information that is “generally known.” Rule 1.9(c)(1) allows a lawyer to use a former client’s information if it is not being used to the disadvantage of the former client orif it has become “generally known.” Rule 1.9(c)(2) prohibits disclosure of a former client’s information, regardless of whether the information has become generally known. Rule 1.9(c)(1) addresses use of a former client’s information, while Rule 1.9(c)(2) deals with disclosure of a former client’s information. Lawyers often fail to realize that, unlike Rule 1.9(a) and (b), which address a lawyer’s duties in a representation adverse to a former client, Rule 1.9(c) applies even when the lawyer has not undertaken a representation adverse to the former client. Now on to what I believe is one of the more confusing rules addressing client information, Rule 1.9(c). There is no exception for information that is “generally known.” However, the prohibition in Rule 1.8(b) only applies if the lawyer is using the information “to the disadvantage of the client.” By implication, Rule 1.8(b) allows a lawyer to use (but not reveal) current client information, so long as the use is not disadvantageous to the client. The rule provides that a lawyer may not use information relating to representation of a client to the disadvantage of the client, unless the client consents. Rule 1.8(b) is limited to current clients. ![]() In contrast to Rule 1.6, which deals with disclosure of information, Rule 1.8(b) pertains to a lawyer’s use of client information. Rule 1.6(b) does not contain an exception pertaining to client information that is “generally known.” The bottom line of Rule 1.6 is that a lawyer may never disclose information obtained during the representation of a client, even if the client becomes a former client, and even if the client’s information becomes “generally known.” The duties under Rule 1.6 continue after the termination of the relationship. There is no distinction between current and former clients in Rule 1.6. Interestingly, neither Rule 1.6, nor any of the other rules discussed below, actually refer to “confidential information.” Rather, these rules protect information “acquired during the professional relationship with a client” or information “relating to representation of a client.” Rule 1.6(a) provides that a lawyer shall not reveal information acquired during the professional relationship with a client unless (1) the client gives informed consent (2) the disclosure is impliedly authorized or (3) one of the exceptions set out in Rule 1.6(b) applies. These rules may distinguish between one or more of the following: (1) current and former clients (2) use versus the disclosure of the information and (3) information that is, or is not, “generally known.” Let’s take a look. However, in addition to Rule 1.6, there are other rules pertaining to client information. We all know that Rule 1.6 of the Rules of Professional Conduct governs a lawyer’s disclosure of client information. (This article appeared in Journal 17,4, December 2012) ![]()
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