All 50 states govern lawyer advertising through their Rules of Professional Conduct, often known as “ethics rules.” The rules in each state are unique to that state. Therefore, it is imperative that lawyers familiarize themselves with the rules of the states that govern their conduct.
Rule 7.1 – Communications Concerning an Attorney’s Services
An attorney shall not make a false or misleading communication about the attorney or the attorney’s services. A communication is false or misleading if it:
(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(b) is likely to create an unjustified expectation about results the attorney can achieve, or states or implies that the attorney can achieve results by means that violate the Maryland Attorneys’ Rules of Professional Conduct or other law; or
(c) compares the attorney’s services with other attorneys’ services, unless the comparison can be factually substantiated.
Comment
[1] This Rule governs all communications about an attorney’s services, including advertising and direct personal contact with potential clients permitted by Rules 19-307.2 (7.2) and 19-307.3 (7.3). Whatever means are used to make known an attorney’s services, statements about them should be truthful. The prohibition in section (b) of this Rule of statements that may create “unjustified expectations” would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the attorney’s record in obtaining favorable verdicts, and advertisements containing client endorsements. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances.
[2] A communication will be regarded as false or misleading if it (1) asserts the attorney’s record in obtaining favorable awards, verdicts, judgments, or settlements in prior cases, unless it also expressly and conspicuously states that each case is different and that the past record is no assurance that the attorney will be successful in reaching a favorable result in any future case, or (2) contains an endorsement or testimonial as to the attorney’s legal services or abilities by a person who is not a bona fide pre-existing client of the attorney and has not in fact benefited as such from those services or abilities.
[3] See also Rule 19-308.4 (f) (8.4) for the prohibition against stating or implying an ability to influence a government agency or official or to achieve results by means that violate the Maryland Attorneys’ Rules of Professional Conduct or other law.
Rule 7.2 – Advertising
(a) Subject to the requirements of Rules 19-307.1 (7.1) and 19-307.3 (b) (7.3), an attorney may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television advertising, or through communications not involving in person contact.
(b) A copy or recording of an advertisement or such other communication shall be kept for at least three years after its last dissemination along with a record of when and where it was used.
(c) An attorney shall not give anything of value to a person for recommending the attorney’s services, except that an attorney may:
(1) pay the reasonable cost of advertising or written communication permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit attorney referral service;
(3) pay for a law practice purchased in accordance with Rule 19-301.17 (1.17); and
(4) refer clients to a non-attorney professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the non-attorney professional to refer clients or customers to the attorney, if:
(A) the reciprocal agreement is not exclusive, and
(B) the client is informed of the existence and nature of the agreement.
(d) Any communication made pursuant to this Rule shall include the name of at least one attorney responsible for its content.
(e) An advertisement or communication indicating that no fee will be charged in the absence of a recovery shall also disclose whether the client will be liable for any expenses.
Cross reference: Maryland Attorneys’ Rules of Professional Conduct, Rule 19-301.8 (e) (1.8).
(f) An attorney, including a participant in an advertising group or lawyer referral service or other program involving communications concerning the attorney’s services, shall be personally responsible for compliance with the provisions of Rules 19-307.1 (7.1), 19-307.2 (7.2), 19-307.3 (7.3), 19-307.4 (7.4), and 19-307.5 (7.5) and shall be prepared to substantiate such compliance.
Comment
[1] To assist the public in obtaining legal services, attorneys should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that an attorney should not seek clientele. However, the public’s need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by attorneys entails the risk of practices that are misleading or over-reaching.
[2] This Rule permits public dissemination of information concerning an attorney’s name or firm name, address and telephone number; the kinds of services the attorney will undertake; the basis on which the attorney’s fees are determined, including prices for specific services and payment and credit arrangements; an attorney’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.
[3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television advertising, against advertising going beyond specified facts about an attorney, or against “undignified” advertising. Television is now one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant.
[4] Neither this Rule nor Rule 19-307.3 (7.3) prohibits communications authorized by law, such as notice to members of a class in class action litigation.
[5] Section (a) of this Rule permits communication by mail to a specific individual as well as general mailings, but does not permit contact by telephone or in person delivery of written material except through the postal service or other delivery service.
Record of Advertising–[6] Section (b) of this Rule requires that a record of the content and use of advertising be kept in order to facilitate enforcement of this Rule. It does not require that advertising be subject to review prior to dissemination. Such a requirement would be burdensome and expensive relative to its possible benefits, and may be of doubtful constitutionality.
Paying Others to Recommend an Attorney–[7] An attorney is allowed to pay for advertising permitted by this Rule and for the purchase of a law practice in accordance with the provisions of Rule 19-301.17 (1.17), but otherwise is not permitted to pay another person for channeling professional work. This restriction does not prevent an organization or person other than the attorney from advertising or recommending the attorney’s services. Thus, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, an attorney may participate in not-for-profit attorney referral programs and pay the usual fees charged by such programs. Section (c) of this Rule does not prohibit paying regular compensation to an assistant, such as a secretary, to prepare communications permitted by this Rule.
Assignments or Referrals from a Legal Services Plan or Attorney Referral Service–[8] An attorney who accepts assignments or referrals from a legal services plan or referrals from a attorney referral service must act reasonably to assure that the activities of the plan or service are compatible with the attorney’s professional obligations. See Rule 19-305.3 (5.3). Legal service plans and attorney referral services may communicate with prospective clients, but such communications must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead prospective clients to think that it was attorney referral service sponsored by a state agency or bar association. Nor could the attorney allow in-person, telephonic, or real-time contacts that would violate Rule 19-307.3 (7.3).
Reciprocal Referral Agreements with Non-attorney Professionals–[9] An attorney may agree to refer clients to a non-attorney professional, in return for the undertaking of that person to refer clients or customers to the attorney to provide them with legal services. Such reciprocal referral arrangements must not be exclusive or otherwise interfere with the attorney’s professional judgment as to making referrals or as to providing substantive legal services. See Rules 19-302.1 (2.1) and 19-305.4 (c) (5.4). The client must also be informed of the existence and nature of the referral agreement. Reciprocal referral agreements should not be of indefinite duration and should be reviewed periodically to determine whether they comply with these Rules. Conflicts of interest created by such arrangements are governed by Rule 19-301.7 (1.7). Referral agreements between attorneys who are not in the same firm are governed by Rule 19-301.5 (e) (1.5).
Responsibility for Compliance–[10] Every attorney who participates in communications concerning the attorney’s services is responsible for assuring that the specified Rules are complied with and must be prepared to substantiate compliance with those Rules. That may require retaining records for more than the three years specified in section (b) of this Rule.
Rule 7.3 – Direct Contact with Prospective Clients
(a) An attorney shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the attorney’s doing so is the attorney’s pecuniary gain, unless the person contacted:
(1) is an attorney; or
(2) has a family, close personal, or prior professional relationship with the attorney.
(b) An attorney shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone, or real-time electronic contact even when not otherwise prohibited by section (a), if:
(1) the attorney knows or reasonably should know that the physical, emotional or mental state of the prospective client is such that the prospective client could not exercise reasonable judgment in employing an attorney;
(2) the prospective client has made known to the attorney a desire not to be solicited by the attorney; or
(3) the solicitation involves coercion, duress, or harassment.
(c) Every written, recorded, or electronic communication from an attorney soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in subsections (a)(1) or (a)(2) of this Rule.
(d) Notwithstanding the prohibitions in section (a) of this Rule, an attorney may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the attorney that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.
Cross reference: For additional restrictions and requirements for certain communications, see Md. Code, Business Occupations and Professions Article, §§ 10-605.1 and 10-605.2.
Comment
[1] There is a potential for abuse inherent in direct in-person, live telephone or real-time electronic contact by an attorney with a prospective client known to need legal services. These forms of contact between an attorney and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the attorney’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.
[2] This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation of prospective clients justifies its prohibition, particularly since attorney advertising and written and recorded communication permitted under Rule 19-307.2 (7.2) offer alternative means of conveying necessary information to those who may be in need of legal services. Advertising and written and recorded communications which may be mailed or autodialed make it possible for a prospective client to be informed about the need for legal services, and about the qualifications of available attorneys and law firms, without subjecting the prospective client to direct in-person, telephone or real-time electronic persuasion that may overwhelm the client’s judgment.
[3] The use of general advertising and written, recorded or electronic communications to transmit information from attorney to prospective client, rather than direct in-person, live telephone or real-time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 19-307.2 (7.2) can be permanently recorded so that they cannot be disputed and may be shared with others who know the attorney. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 19-307.1 (7.1). The contents of direct in-person, live telephone or real-time electronic conversations between an attorney and a prospective client can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.
[4] There is far less likelihood that an attorney would engage in abusive practices against a person who is a former client, or with whom the attorney has a close personal or family relationship, or in situations in which the attorney is motivated by considerations other than the attorney’s pecuniary gain. Nor is there a serious potential for abuse when the person contacted is an attorney. Consequently, the general prohibition in Rule 19-307.3 (a) (7.3) and the requirements of Rule 19-307.3 (c) (7.3) are not applicable in those situations. Also, section (a) is not intended to prohibit an attorney from participating in constitutionally protected activities of public or charitable legal-service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries.
[5] But even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 19-307.1 (7.1), which involves coercion, duress or harassment within the meaning of Rule 19-307.3 (b)(2) (7.3), or which involves contact with a prospective client who has made known to the attorney a desire not to be solicited by the attorney within the meaning of Rule 19-307.3 (b)(2) (7.3) is prohibited. Moreover, if after sending a letter or other communication to a client as permitted by Rule 19-307.2 (7.2) the attorney receives no response, any further effort to communicate with the prospective client may violate the provisions of Rule 19-307.3 (b) (7.3).
[6] This Rule is not intended to prohibit an attorney from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the attorney or attorney’s firm is willing to offer. This form of communication is not directed to a prospective client. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the attorney. Under these circumstances, the activity which the attorney undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 19-307.2 (7.2).
[7] The requirement in Rule 19-307.3 (c) (7.3) that certain communications be marked “Advertising Material” does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors. General announcements by attorneys, including changes in personnel or office location, do not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this Rule.
[8] Section (d) of this Rule permits an attorney to participate with an organization that uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any attorney who would be a provider of legal services through the plan. The organization must not be owned by or directed (whether as manager or otherwise) by any attorney or law firm that participates in the plan. For example, section (d) of this Rule would not permit an attorney to create an organization controlled directly or indirectly by the attorney and use the organization for the in-person or telephone solicitation of legal employment of the attorney through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services. Attorneys who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rules 19-307.1 (7.1), 19-307.2 (7.2) and 19-307.3 (b) (7.3). See 19-308.4 (a) (8.4).
Rule 7.4 – Communication of Fields of Practice
(a) An attorney may communicate the fact that the attorney does or does not practice in particular fields of law, subject to the requirements of Rule 19-307.1 (7.1).
(b) An attorney admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation “Patent Attorney” or a substantially similar designation.
Comment
[1] This Rule permits an attorney to indicate areas of practice in communications about the attorney’s services; for example, in a telephone directory or other advertising. If attorney practices only in such fields, or will not accept matters except in such fields, the attorney is permitted so to indicate.
[2] Section (b) of this Rule recognizes the long-established policy of the Patent and Trademark Office for the designation of attorneys practicing before the Office.
Model Rules Comparison–This Rule adopts Rule 7.4 (a) and (b) of the ABA Model Rules of Professional Conduct, and expressly makes section (a) “subject to the requirement of Rule 19-307.1 (7.1).” The substance of the first two sentences of the ABA Comment on Rule 7.4 (a) is included in Comment [1], and the ABA Comment on Rule 7.4 (b) is included as Comment [2].
Rule 7.5 – Firm Names and Letterheads
(a) An attorney shall not use a firm name, letterhead or other professional designation that violates Rule 19-307.1 (7.1). A trade name may be used by an attorney in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 19-307.1 (7.1).
(b) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the attorneys in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
(c) The name of an attorney holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the attorney is not actively and regularly practicing with the firm.
(d) Attorneys may state or imply that they practice in a partnership or other organization only when that is the fact.
Comment
[1] A firm may be designated by the names of all or some of its members, by the names of deceased or retired members where there has been a continuing succession in the firm’s identity or by a trade name such as the “ABC Legal Clinic.” A firm may not be designated by the names of non-attorneys. See Rule 19-305.4 (5.4). Although the United States Supreme Court has held that legislation may prohibit the use of trade names in professional practice, use of such names in law practice is acceptable so long as it is not misleading. It may be observed that any firm name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification. However, it is misleading to use the name of an attorney not associated with the firm or a predecessor of the firm, or the name of a non-attorney.
[2] An attorney in private practice may not practice under a name which implies any connection with the government or any agency of the federal government, any state or any political subdivision, or with a public or charitable legal services organization. This is to prevent a situation where non-attorneys might conclude that they are dealing with an agency established or sanctioned by the government, or one funded by either the government or public contributions and thus charging lower fees. The use of any of the following ordinarily would violate this Rule:
(1) The proper name of a government unit, whether or not identified with the type of unit. Thus, a name could be the basis of a disciplinary proceeding if it included the designation “Annapolis” or “City of Annapolis,” “Baltimore,” or “Baltimore County,” “Maryland,” or “Maryland State” (which could be a violation as a confusing although mistaken reference to the state or under Comment [3]).
(2) The generic name of any form of government unit found in the same area where the firm practices, e.g. national, state, county, or municipal.
(3) The name of or a reference to a college, university, or other institution of higher learning, regardless of whether it has a law school, unless the provider of legal higher learning. For example, the names “Georgetown Legal Clinic (or “Law Office,” etc.)” and “U.B. Legal Clinic (or “Law Office,” etc.)” could both violate this Rule if used by unaffiliated organizations.
(4) The words “public,” “government,” “civic,” “legal aid,” “community,” “neighborhood,” or other words of similar import suggesting that the legal services offered are at least in part publicly funded. Although names such as “Neighborhood Legal Clinic of John Doe” might otherwise appear unobjectionable, the terms “legal aid,” “community” and “neighborhood” have become so associated with public or charitable legal services organizations as to form the basis of disciplinary proceedings.
[3] Firm names which include geographical names which are not also government units, or adjectives merely suggesting the context of the practice (e.g., “urban,” “rural”) ordinarily would not violate Rule 19-307.5 (7.5). The acceptability of the use of a proper or generic name of a government unit when coupled with an adjective or further description (beyond mere reference to the provision of legal services) should be judged by the general policy underlying Rule 19-307.5 (7.5), and any doubt regarding the misleading connotations of a name may be resolved against use of the name.
[4] With regard to section (d) of this Rule, attorneys sharing office facilities, but who are not in fact partners, may not denominate themselves as, for example, “Smith and Jones,” for that title suggests partnership in the practice of law.
Rule 1.6 – Confidentiality of Information
(a) An attorney shall not reveal information relating to 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 section (b) of this Rule.
(b) An attorney may reveal information relating to the representation of a client to the extent the attorney reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the attorney’s services;
(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the attorney’s services;
(4) to secure legal advice about the attorney’s compliance with these Rules, a court order or other law;
(5) to establish a claim or defense on behalf of the attorney in a controversy between the attorney and the client, to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the attorney based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the attorney’s representation of the client; or
(6) to comply with these Rules, a court order or other law.
Comment
[1] This Rule governs the disclosure by an attorney of information relating to the representation of a client during the attorney’s representation of the client. See Rule 19-301.18 (1.18) for the attorney’s duties with respect to information provided to the attorney by a prospective client, Rule 19-301.9 (c)(2) (1.9) for the attorney’s duty not to reveal information relating to the attorney’s prior representation of a former client and Rules 19-301.8 (b) (1.8) and 19-301.9 (c)(1) (1.9) for the attorney’s duties with respect to the use of such information to the disadvantage of clients and former clients.
[2] A fundamental principle in the client-attorney relationship is that, in the absence of the client’s informed consent, the attorney must not reveal information relating to the representation. See Rule 19-301.0 (f) (1.0) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-attorney relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the attorney even as to embarrassing or legally damaging subject matter. The attorney needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to attorneys in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, attorneys know that almost all clients follow the advice given, and the law is upheld.
[3] The principle of client-attorney confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which an attorney may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-attorney confidentiality applies in situations other than those where evidence is sought from the attorney through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. An attorney may not disclose such information except as authorized or required by the Maryland Attorneys’ Rules of Professional Conduct or other law. See also Scope.
[4] Section (a) of this Rule prohibits an attorney from revealing information relating to the representation of a client. This prohibition also applies to disclosures by an attorney that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. An attorney’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.
Implied Authority to Disclose
[5] Except to the extent that the client’s instructions or special circumstances limit that authority, an attorney is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, an attorney may be impliedly authorized to admit a fact that cannot properly be disputed, or to make a disclosure that facilitates a satisfactory conclusion to a matter. Attorneys in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified attorneys.
Disclosure Adverse to Client
[6] Although the public interest is usually best served by a strict rule requiring attorneys to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. Section (b) of this Rule, however, permits disclosure only to the extent the attorney reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the attorney should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client’s interest should be no greater than the attorney reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the attorney to the fullest extent practicable.
[7] Section (b) of this Rule permits, but does not require the disclosure of information relating to a client’s representation to accomplish the purposes specified in subsections (b)(1) through (b)(6) of this Rule. In exercising the discretion conferred by this Rule, the attorney may consider such factors as the nature of the attorney’s relationship with the client and with those who might be injured by the client, the attorney’s own involvement in the transaction and factors that may extenuate the conduct in question. An attorney’s decision not to disclose as permitted by section (b) of this Rule does not violate this Rule. Disclosure may be required, however, by other Rules regardless of whether the disclosure is permitted by Rule 19-301.6 (1.6). See Rules 19-301.2 (d) (1.2), 19-303.3 (a)(4) (3.3), 19-304.1 (b) (4.1), 19-308.1 (8.1) and 19-308.3 (8.3). An attorney representing an organization may in some circumstances be permitted to disclose information regardless of whether the disclosure is permitted by Rule 19-301.6 (b) (1.6). See Rule 19-301.13 (c) (1.13).
[8] Subsection (b)(1) of this Rule recognizes the overriding value of life and physical integrity and permits disclosure reasonably believed necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the attorney fails to take action necessary to eliminate the threat. Thus, an attorney who knows that a client has accidentally discharged toxic waste into a town’s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease, and the attorney reasonably believes disclosure is necessary to eliminate the threat or reduce the number of victims.
[9] Subsection (b)(2) of this Rule is a limited exception to the rule of confidentiality that permits the attorney to reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or a fraud, as defined in Rule 19-301.0 (e) (1.0), that is reasonably certain to result in substantial injury to the financial or property interests of another and in furtherance of which the client has used or is using the attorney’s services. Such a serious abuse of the client-attorney relationship by the client forfeits the protection of this Rule. The client can, of course, prevent such disclosure by refraining from the wrongful conduct. Although subsection (b)(2) of this Rule does not require the attorney to reveal the client’s misconduct, the attorney may not counsel or assist the client in conduct the attorney knows is criminal or fraudulent. See Rule 19-301.2 (d) (1.2). See also Rule 19-301.16 (1.16) with respect to the attorney’s obligation or right to withdraw from the representation of the client in such circumstances. Where the client is an organization, the attorney should consult Rule 19-301.13 (b) (1.13).
[10] Subsection (b)(3) of this Rule addresses the situation in which the attorney does not learn of a client’s criminal or fraudulent act in furtherance of which the attorney’s services were used until after the act has occurred. Although the client no longer has the option of preventing disclosure by refraining from the wrongful conduct, there will be situations in which the loss suffered by the affected person can be prevented, rectified or mitigated. In such situations, the attorney may disclose information relating to the representation to the extent necessary to enable the affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses. Subsection (b)(3) of this Rule does not apply when a person who has committed a crime or fraud thereafter employs an attorney for representation concerning that offense.
[11] An attorney’s confidentiality obligations do not preclude an attorney from securing confidential legal advice about the attorney’s personal responsibility to comply with these Rules, a court order or other law. In most situations, disclosing information to secure such advice will be impliedly authorized for the attorney to carry out the representation. Even when the disclosure is not impliedly authorized, subsection (b)(4) of this Rule permits such disclosure because of the importance of an attorney’s compliance with the law.
Withdrawal
[12] If the attorney knows that the attorney’s services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the attorney must withdraw, as stated in Rule 19-301.16 (a)(1) (1.16). After withdrawal the attorney is required to refrain from making disclosure of the client’s confidences, except as otherwise provided in Rule 19-301.6 (1.6) or in other Rules.
[13] If the attorney knows that despite the withdrawal the client is continuing in conduct that is criminal or fraudulent, and is making use of the fact that the attorney was involved in the matter, the attorney may have to take positive steps to avoid being held to have assisted the conduct. See Rules 19-301.2 (d) (1.2) and 19-304.1 (b) (4.1). In other situations not involving such assistance, the attorney has discretion to make disclosure of otherwise confidential information only in accordance with Rules 19-301.6 (1.6) and 19-301.13 (c) (1.13). Neither this Rule nor Rule 19-301.8 (b) (1.8) nor Rule 19-301.16 (d) (1.16) prevents the attorney from giving notice of the fact of withdrawal, and the attorney may also withdraw or disaffirm any opinion, document, affirmation, or the like.
Dispute Concerning Attorney’s Conduct
[14] Where a legal claim or disciplinary charge alleges complicity of the attorney in a client’s conduct or other misconduct of the attorney involving representation of the client, the attorney may respond to the extent the attorney reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the attorney against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the attorney and client acting together. The attorney’s right to respond arises when an assertion of such complicity has been made. Subsection (b)(5) of this Rule does not require the attorney to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.
[15] An attorney entitled to a fee is permitted by subsection (b)(5) of this Rule to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.
Disclosures Otherwise Required or Authorized
[16] As noted in Comment 7, Rules 19-303.3 (b) (3.3) and 19-304.1 (b) (4.1) require disclosure in some circumstances regardless of whether the disclosure is permitted by Rule 19-301.6 (1.6). Circumstances may be such that disclosure is required under other Rules, for example, Rule 19-301.2 (d) (1.2), in order to avoid assisting a client to perpetrate a crime or fraud.
[17] Other law may require that an attorney disclose information about a client. Whether such a law supersedes Rule 19-301.6 (1.6) is a question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be required by other law, the attorney must discuss the matter with the client to the extent required by Rule 19-301.4 (1.4). If, however, the other law supersedes this Rule and requires disclosure, subsection (b)(6) of this Rule permits the attorney to make such disclosures as are necessary to comply with the law.
[18] An attorney may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the attorney should assert on behalf of the client all non-frivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the attorney must consult with the client about the possibility of appeal to the extent required by Rule 19-301.4 (1.4). Unless review is sought, however, subsection (b)(6) of this Rule permits the attorney to comply with the court’s order.
Acting Competently to Preserve Confidentiality
[19] An attorney must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the attorney or other persons who are participating in the representation of the client or who are subject to the attorney’s supervision. See Rules 19-301.1 (1.1), 19-305.1 (5.1) and 19-305.3 (5.3).
[20] When transmitting a communication that includes information relating to the representation of a client, the attorney must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the attorney use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the attorney’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the attorney to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.
Former Client
[21] The duty of confidentiality continues after the client-attorney relationship has terminated. See Rule 19-301.9 (c)(2) (1.9). See Rule 19-301.9 (c)(1) (1.9) for the prohibition against using such information to the disadvantage of the former client.
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