CBA Record May-June 2025

PRACTICAL ETHICS BY TRISHA RICH AND LEONARD C. BRAHIN ABA Ethics Opinion Finds Additional Confidentiality Exception T he American Bar Association’s Standing Committee on Ethics and Professional Responsibility released Formal Opinion 515 on March 5, 2025, to provide guid ance on how attorneys’ confidentiality obligations are implicated when they are victims of crimes committed by their own clients. Background An attorney’s obligation of confidentiality arises from Rule 1.6(a) of the ABA Rules of Professional Conduct. Under the Rule, A lawyer shall not reveal information relating to the 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 paragraph (b). Rule 1.6(a) prioritizes the ability for lawyers and clients to have full and frank dis closures and is based on the fundamental interest the public has in confidentiality. Its confidentiality obligations are broad. However, Rule 1.6(b) (and other Rules) provide exceptions. Rule 1.6(b) exceptions are all prospective, focusing on harm mitigation or compliance with the Model Rules. Nota bly absent from these exceptions are disclosures related to criminal activity that has already taken place against the attorney. Indeed, the only crime-related confidentiality exceptions are those that an attorney reasonably believes a client may commit against others. ABA Committee Analysis Analyzing the Model Rules, the Committee first considered whether a criminal is con sidered a client or a prospective client who would have confidentiality. Under the Rules, an individual who seeks out an attorney with the intent to defraud (or commit any other crime) cannot obtain confidentiality protections under the rules because the attorney was not sought out for the purpose of obtaining legal advice. If an individual does have a bona fide attorney-client relationship (or prospective attorney-client relationship) with the attorney, the question becomes whether the crimi nal act taken relates to representation. The Committee concluded that most crimes by a client against their attorney constitute information related to representation. This poses an obvious problem. Because an attorney’s confidentiality obligations exceed the limits of attorney-client privilege, information about a past crime—even against an attorney— may be sufficiently related to representation such that the attorney’s confidentiality

obligations, at least theoretically, would prevent disclosure. In light of this obvious predicament, the Committee relied on the “rule of reason.” For the Committee, the Model Rules may be constrictive at times, but they are not meant to be a purely aca demic exercise. Indeed, the Commit tee had previously adopted an implicit exception to an attorney’s confidentiality obligations for the purpose of obtaining ethics advice (which is now its own excep tion in Rule 1.6(b)). But the exceptions that the Committee enumerated all serve the same purpose: preventing the abuse of the attorney-client relationship and an attorney’s ethical obligations. As the Committee quips, “lawyers may metaphorically take a bullet for the client, but they cannot reasonably be expected to take a bullet from the client and to keep quiet about it.” And this exception is not limited just to the attorney. The same policy justifications that permit an attor ney to break confidentiality also protect an attorney’s staff and close associates; attor neys should not need to put their staff at risk in service of their practice. The Committee makes clear that implied exceptions are short and far between. It admonishes attorneys not to use this opinion as permission to disre gard the Rules when their purpose may not best be served. Limits of the Exceptions For that reason, this implied exception to an attorney’s confidentiality obligations is not unlimited. For financial fraud against an attorney, for example, an attorney may be required to disclose the methods of a client’s fraud. But for a violent crime, an attorney need not disclose the full scope of any confidential, preceding interaction that might have provoked or inspired the attack.

Trisha M. Rich is a commercial litigator and legal ethicist at Holland & Knight, First Vice President-Elect of the Chicago Bar Association, and a past president of the Association of Professional Responsibility Lawyers.

Leonard C. Brahin is a commercial litigator and legal ethicist at Holland & Knight.

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