CBA Record October 2018

LEGAL ETHICS

John Levin’s Ethics columns, which are published in each CBA Record, are now in-

dexed and available online. For more, go to http://johnlevin.info/ legalethics/. ETHICS QUESTIONS? The CBA’s Professional Responsibility Commit- tee can help. Submit hypothetical questions to Loretta Wells, CBA Government Affairs Direc- tor, by fax 312/554-2054 or e-mail lwells@ chicagobar.org.

BY JOHN LEVIN Protected Client Information: It's Broader Than Secrets O ver the years, the restrictions on the disclosure of client informa- tion have become more and more

Formal Opinion 480 (March 6, 2018) discussed “Confidentiality Obligations for Lawyer Blogging and Other Public Commentary” and concluded that “Law- yers who blog or engage in other public commentary may not reveal information relating to a representation that is protected by Rule 1.6(a), including information con- tained in a public record, unless disclosure is authorized under the Model Rules.” In reaching this conclusion, the Opinion stated: “Unless one of the exceptions to Rule 1.6(a) is applicable, a lawyer is prohib- ited from commenting publicly about any information related to a representation.” Formal Opinion 479 (December 15, 2017) deals withModel Rule 1.9 (the same as Illinois Rule 1.9.). The Opinion states: “Model Rule 1.9(c)(2) governs the revela- tion of former client confidential informa- tion. Under Model Rule 1.9(c)(2), a lawyer who formerly represented a client in a matter, or whose present or former firm formerly represented a client in a matter, may not reveal information relating to the representation except as the Model Rules “would permit or require with respect to a [current] client.” Lawyers thus have the same duties not to reveal former client confidences under Model Rule 1.9(c)(2) as they have with regard to current clients under Model Rule 1.6.” An article in the May 2018 edition of the ABA Journal discusses the pro’s and con’s of the “enhanced duty of confidential- ity when engaging in public commentary.” The article states: On the surface, it sounds nonsensi-

constricting. Toward the end of the last century, Illinois Rule 1.6(a) stated that: “…a lawyer shall not, during or after ter- mination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after disclosure.” This was a fairly reasonable restriction since client confidences and secrets were easily identifiable and readily kept confidential. Lawyers could discuss client information otherwise public. However, based upon changes in the ABAModel Rules, Illinois Rule 1.6(a) was amended and now states: “…[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent….” The body of information “relating to the representation” is far broader than a “confidence or secret of the client.” This interpretation is rein- forced by Comment 3 to the Rule, which states (in part): “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.” Two recent ABA Formal Opinions exemplify the extensive reach of the Rule. John Levin is the retired Assis- tant General Counsel of GATX Corporation and a member of the CBARecord Editorial Board.

REDUCE STUDENT LOAN PAYMENTS THROUGH CREDIBLE

Credible allows Chicago Bar members and their

families to explore ways to save thousands on

their student debt. With Credible, you can fill

out one simple form and receive personalized

refinancing offers from multiple lenders. You

can also visit Credible via http://ow.ly/WrgYA to

learnmore about student loan topics, including

student loan refinancing, student loan consoli-

dation, student loan reduction, and student loan

forgiveness.

cal—why should a lawyer be sanc- tioned for talking about informa- tion that everyone knows already?” Bazelon says. “But a lawyer isn’t an objective public commentator or an ordinary member of the public. A lawyer is her client’s advocate, and in that role she must elevate the client’s

58 OCTOBER 2018