Washington Lawyer - May 2020 - 43

SPEAKING OF E THICS
authorized representative of the decedent's
estate to use the Confidential Attorney-Client
document to pursue the case on remand. In
each of the other three scenarios, however,
there is no apparent person from whom the
lawyer could obtain informed consent to make
disclosure of secrets protected by Rule 1.6.
5. Determine if disclosure is permitted
under any Rule 1.6 exception: Rule 1.6(e)(4)
"implied authorization" exception. If the
lawyer believes that disclosure of the client's
confidences and secrets is in the client's interest,
but it is not possible to obtain informed consent
for such disclosure, then the lawyer may not
disclose unless the situation falls squarely within
one of the enumerated exceptions to Rule 1.6.
The only such exception here that may permit
the lawyers in our hypothetical scenarios to
disclose client confidences and secrets arises
under Rule 1.6(e)(4), the "implied authorization"
exception:
A lawyer may use or reveal client confidences or secrets: . . .
(4) when the lawyer has reasonable grounds
for believing that a client has impliedly
authorized disclosure of a confidence or
secret in order to carry out the
representation.
As comment [11] thereto explains:
A lawyer is impliedly authorized to make
disclosures about a client when appropriate
in carrying out the representation, except to
the extent that the client's instructions or
special circumstances limit that authority. In
litigation, for example, a lawyer may disclose
information by admitting a fact that cannot
properly be disputed, or in negotiation by
making a disclosure that facilitates a satisfactory conclusion.
Thus, to make disclosure under the Rule 1.6(e)(4)
exception, the lawyer must determine, to the
best of his or her ability, what the client's
instructions would have been had the lawyer
been able to consult with the client. This resolution of this question, usually very fact-specific
and sometimes unknowable, is often difficult
and may present a close call.
In the first scenario, Larry Lawyer is faced with
classic competing and contradictory imperatives. On the one hand, Wife could not have
been clearer that she did not want anyone -
particularly Husband - to know that she had a
daughter and, were Larry to disclose that fact,

he would be essentially defying his client's
specific instruction. On the other hand, Larry
knows that Wife wanted to provide for her
daughter and that, absent Larry's disclosure of
his client's intent to provide for the fourth heir,
the client's purpose would be thwarted and
Daughter would receive no share in Wife's
estate.
The D.C. Bar Legal Ethics Committee, addressing
this very scenario in Legal Ethics Opinion 324
(Disclosure of Deceased Client's Files), essentially
punts, leaving the decision to "the best professional judgment" of the attorney, who is in the
best position to know what the client would
have wanted under these circumstances.
However, the committee suggested that disclosure should not be made to a person when the
lawyer received a specific client directive not to
disclose to that very person.4
Scenario two is perhaps the prototypical case
for what the Rule 1.6(e)(4) exception seeks to
permit: Attila clearly has reasonable grounds to
believe that his deceased client would have
wanted him to handle the case after its remand
back to the trial court, and such representation
is unquestionably necessary "to carry out the
representation." However, he will still need to
exercise his best judgment to determine
whether his deceased client's wishes that he
see the case through to the very end extends to
his use of the client's Confidential Attorney-
Client document.
In the third scenario, it seems clear that Connie
Counsel does not have her deceased client's
implied authorization to publicly disclose his
bequests. First, Bean Generous specifically
instructed her that his gifts were to be anonymous and, second, such public disclosure is
now not at all necessary "to carry out the
representation."
In scenario four, the salient question is whether
Karen's life story is still a client secret that Barry
Barrister is duty-bound to protect.5 On one
hand, Karen has died and can no longer suffer
embarrassment, but on the other hand, she had
specifically expressed concern about embarrassment to her family, which could still be an
issue. If her story remains a "secret," Barry may
not discuss Karen with the author because
there is no sound argument that disclosure is
necessary to carry out the representation.
In conclusion, a lawyer's duty to maintain and
protect client confidences and secrets is of paramount importance under the D.C. Rules and,

when in doubt, the default should always tend
to non-disclosure. If there is no substantive law
mandating disclosure, then the lawyer must
determine whether there is any way to accomplish the client's wishes without disclosing
client confidences and secrets, including
seeking informed consent from the client or, if
that is not possible, seeking informed consent
from a third person authorized by law to permit
disclosure.
If the lawyer believes that disclosure of the
client's confidences and secrets is in the client's
interest but obtaining informed consent for
such disclosure is not possible, then the lawyer
must nonetheless protect the confidential information unless disclosure is clearly permitted by
one of the enumerated Rule 1.6 exceptions.
In particular, the Rule 1.6(e)(4) exception permits
disclosure when "the lawyer has reasonable
grounds for believing that a client has impliedly
authorized disclosure of a confidence or secret
in order to carry out the representation." This
determination is usually left to the professional
judgment of the attorney, who is in the best
position to determine what the client's directions would have been under the circumstances.
D.C. Bar legal ethics counsel are available for confidential inquiries on the Legal Ethics Helpline at
202-737-4700, ext. 1010, or at ethics@dcbar.org.

NOTES
1 Informed consent is defined as "the agreement by
a person to a proposed course of conduct after the
lawyer has communicated adequate information
and explanation about the material risk of and
reasonably available alternatives to the proposed
course of conduct. Rule 1.0(e) (Terminology).
2 The same problem would arise where the client is
alive, but his whereabouts are unknown, or where
the client's location is known, but communication
with the client has been rendered impossible.
3 See Rule 1.14(b) (Client With Diminished Capacity).
4 See Nassau County (N.Y.) Committee on Professional
Ethics Opinion No. 03-4, cited by LEO 324.
5 It is important to note that even if the client's "life
story" is unrelated to the matters in which Barry
represented her, it is still a "secret" pursuant to
Rule 1.6 because it is "information gained in the
professional relationship . . . the disclosure of which
would be embarrassing, or would be likely to be
detrimental, to the client."

MAY 2020

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