Washington Lawyer - May 2020 - 42

SPEAKING OF E THICS

'IMPLIED AUTHORIZATION'
DISCLOSURE EXCEPTION
By Saul Jay Singer
SCENARIO ONE: Years ago, counsel drafted
a will for Wife, pursuant to which all her assets
were to be divided equally amongst the three
sons she had with Husband. She retains Larry
Lawyer to redraft her will and, after demanding
and receiving multiple assurances from him
regarding the sanctity of the attorney-client
privilege, she advises Larry in strictest confidence that, prior to her marriage to Husband,
she had a daughter about whom Husband has
no knowledge. She asks Larry to draft her new
will dividing assets equally amongst her four
children, but under no circumstances is the will
- or Larry - to make known her relationship
to her daughter.
Larry begins to prepare the will in accordance
with his client's directions, but before he can
finalize it, she dies suddenly. Husband, who is
executor of her estate, knows that Wife has consulted with Larry, but he does not know about
the nature and scope of the representation. He
wants to discuss with Larry any issues relevant
to his fiduciary duties as executor of his late
wife's estate.
SCENARIO TWO: Last year, just before Cal
Client died, Attila Attorney filed an appeal in
a case where, months later, the appellate court
now has remanded the case to the trial court.
Attila knows that the case was very important
to his client, and the executor of Cal's estate
wants Attila to continue as counsel in the
remanded case. However, Attila's best evidence
is a Confidential Attorney-Client document that
Cal completed shortly before he died.
SCENARIO THREE: Connie Counsel effectuated several charitable transfers for bachelor
Bean Generous, pursuant to which monetary
gifts were anonymously given to various charities, including a particularly large donation to
Capitol College in the District to establish a
Hispanic American history department. The
college recently announced publicly that it
wants to name its new history building after its

42 WASHINGTON LAWYER

MAY 2020

supremely benevolent but anonymous benefactor, hoping that the donor would step
forward. However, Bean died two years ago, and
Connie wonders if she may now spill the beans.
SCENARIO FOUR: For over 40 years and in a
variety of matters, Barry Barrister represented
Karen Choi, who had served as a municipal
judge in China prior to Chairman Mao's Cultural
Revolution and had barely escaped with her life
to the United States. A significant side benefit
for Barry was hearing Karen's incredible stories
about her life in China, both pre- and postrevolution. He'd often thought that her story
would make a great novel, but whenever he
raised the subject with her, she would respond
that public disclosure of her story would embarrass her and her family and that she just wanted
to live her life free of undue publicity.
A few years after his client's death, Barry
receives a call from an author who is writing a
nonfiction novel about the judiciary in pre-revolution China and wants to interview him about
Karen.
The problem underlying each of these
scenarios is Rule of Professional Conduct 1.6
(Confidentiality of Information), pursuant to
which a lawyer is ethically bound to protect
client confidences and secrets, an exceptionally
broad duty that generally trumps other ethical
imperatives under the D.C. Rules.
Pursuant to Rule 1.6(b), that duty extends to protecting not only confidences, defined as "information protected by the attorney-client
privilege under applicable law," but also secrets,
"other information gained in the professional
relationship that the client has requested be held
inviolate, or the disclosure of which would be
embarrassing, or would be likely to be detrimental, to the client." Thus, the duty of confidentiality under Rule 1.6 is far broader than the
attorney-client privilege, a crucial fact that
lawyers forget at their peril. This duty transcends

not only the representation but, indeed, the life
of the client; in other words, it is forever.
1. Keep in mind that substantive law
controls. One of the bedrock principles of
legal ethics is that a statute, a rule, or a court
order trumps the Rules of Professional Conduct.
Thus, the first question for each lawyer in our
four scenarios is whether there exists any substantive law mandating disclosure under the
circumstances, a question that is beyond the
scope of this article.
2. Carefully consider if there are any ways
to accomplish the client's wishes without
disclosing confidences and secrets. Before
making a disclosure, a lawyer should always
determine if there exist any other ways to avoid
Rule 1.6-protected client information, such as
redacting confidential information from a
document or forcing an inquirer to obtain a
court order compelling disclosure.
3. Seek informed consent from the client.
Barring any such mandatory disclosures, the
golden solution for a lawyer facing a Rule 1.6
issue is for the lawyer to obtain the informed
consent of the client to make the disclosure.1
However, each of the four scenarios here has
been purposely constructed so as to make it
impossible for the lawyer to seek such informed
consent because the clients are all deceased.2
4. Seek informed consent from an authorized third person. If the lawyer believes that
disclosure of the client's confidences and
secrets is in the client's interest and communication with the client is not possible, then the
next step is to try to obtain informed consent
from a person legally designated or authorized
to act on behalf of the client. This could be,
for example, an estate representative in some
cases, or a surrogate decisionmaker when a
client lacks capacity.3
Thus, in our second scenario, Attila might be
able to obtain informed consent from the duly

Washington Lawyer - May 2020

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