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Rule 1.6(a) Gets a Needed Haircut

This column of January 2011 discussed the then new 2010 Illinois Rule 1.6(a) on client confidences. The Rule states: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) or required by paragraph (c).” Comment 3 to Rule 1.6 states:
”The confidentiality rule … applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.”

I noted at that time that the Rule, if carried to its extreme, would prohibit lawyers from discussing facts in matters that were of public record or even disclosed in the press. In fact, a lawyer would be prohibited from commenting on the facts of a trial that were disclosed in the Chicago Tribune, even though everyone else in the city could discuss them. Since then various court and bar association opinions have held that the Rule means what it says, and lawyers cannot “reveal information relating to the representation of a client” even if others know of it.

A recent opinion of the Virginia Supreme Court brings a little rationality to the situation. In Hunter v. Virginia State Bar Third District Committee, Record No.121472 (February 28, 2013), the court considered the question “whether an attorney may discuss public information related to a client without the client’s consent.”

In this case, the Virginia State Bar censured Hunter for violation of Virginia’s Rule 1.6. (This Rule is similar to the Illinois Rule prior to the 2010 amendments. However, since the prior Rule is less restrictive than the 2010 Rule, the Virginia court’s reasoning is even more telling.) The State Bar “presented a former client who testified that he did not consent to information about his cases being posted on Hunter's blog and believed that the information posted was embarrassing or detrimental to him, despite the fact that all such information had previously been revealed in court.” Hunter argued and won at the circuit court level that the State Bar’s opinion violated his First Amendment rights.

The Virginia Supreme Court upheld the decision of the lower court. The opinion merits quoting:

All of Hunter's blog posts involved cases that had been concluded. Moreover, the [Virginia State Bar] concedes that all of the information that was contained within Hunter's blog was public information and would have been protected speech had the news media or others disseminated it. . . . The VSB argues that it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession. Such concerns, however, are unsupported by the evidence. To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom. Thus, the circuit court did not err in concluding that the VSB's interpretation of Rule 1.6 violated the First Amendment.

I did not understand why the ABA promulgated such a restrictive Model Rule 1.6 along with its equally restrictive Comments. I did not understand why the Illinois Supreme Court adopted the Model Rule, and I certainly did not understand why some state bar associations, such as the Virginia State Bar, were willing to enforce the rule (or its less restrictive predecessor) to its extreme.

I am pleased the Virginia Supreme Court has stated, at least with respect to matters revealed in open court, that a lawyer has the same freedom of speech as anyone else.