The FBA Ethics Minute: A Lawyer Walks Into a Holiday Party…

This is part of the Ethics Committee’s regular series of Ethics Minutes for federal litigators and others—what to watch out for, what to do, and what not to do. Let us know what you think! Have an idea for a future Ethics Minute? Reach out to us!

The Curtain Rises

Attorney Bob is attending a holiday alumni reception at his law school. He imbibes a few adult beverages and catches up with some classmates. While talking to fellow attorney Sally, Bob relays some information regarding a big case he settled recently. He says “You may have heard it was in the news… but that didn’t even begin to cover it.” Bob then shares some additional details with Sally.

Sally has had a few drinks herself and responds “Oh wow, I did see that case on the news. If you think that case was bad, my current client is not ready to enter into a settlement like that but really should.” Sally doesn’t name her client but proceeds to tell Bob many details about her client’s situation and asks Bob what he thinks. Unbeknownst to Sally, Bob’s firm is also involved in the case, and Bob recognizes the client despite Sally not naming names.

The Moral of the Story

Be careful what information you share at holiday parties, especially when alcohol is involved. Impaired judgment (or a sense of bravado) can lead attorneys to share too much client information and violate their ethical duties of confidentiality.

Model Rule 1.6 addresses the duty of confidentiality to current clients and prohibits lawyers from revealing information related to client representation. Although Sally did not reveal her client’s name, she revealed enough information for Bob to be able to identify the client. Comment 4 allows attorneys to use hypotheticals only if “there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.”        

What about Bob? His case was in the news, so he’s in the clear, right? Wrong. Model Rule 1.9 contains a continuing duty of confidentiality to former clients, which includes the same duty not to reveal client information as in Model Rule 1.6.  ABA Opinion 479 addresses the “generally known” exception to former client confidentiality. From the name of the exception, one could assume that if a case was in the news or the records are publicly available, an attorney may talk about it. However, the ABA opinion explains that this is not sufficient for information to be “generally known.”

First, the exception applies only to use and NOT disclosure of former client information. Additionally, the exception only applies if “(a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession, or trade.” Bob’s case was in the news, but he still had a duty not to disclose former client information since the “generally known” exception would be inapplicable here.

Remember to be cautious at parties this holiday season, and happy holidays from the Ethics Committee!

Ethics Minutes are for your general information and do not constitute legal advice. The rules, ethics opinions, and disciplinary cases in particular jurisdictions vary and might result in an outcome different from the scenarios that are described here.

About the Author

Nicole Kolinski is an attorney for the Architect of the Capitol Office of General Counsel. She serves on the FBA’s Ethics Committee and is a Council Member of the Capitol Hill Chapter. The above reflects the views of the author and do not represent the position of the Architect of the Capitol, the legislative branch, or any government agency.

About the FBA

Founded in 1920, the Federal Bar Association is dedicated to the advancement of the science of jurisprudence and to promoting the welfare, interests, education, and professional development of all attorneys involved in federal law. Our more than 16,000 members run the gamut of federal practice: attorneys practicing in small to large legal firms, attorneys in corporations and federal agencies, and members of the judiciary. The FBA is the catalyst for communication between the bar and the bench, as well as the private and public sectors. Visit us at fedbar.org to learn more.