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November 19, 2012

Clarifying all the talk about Pillow Talk

by WSBA

I am told that the November issue of Bar News, which contained an article called Pillow Talk: The Obligations of RPC 1.6, authored by Jamila Johnson, drew substantial discussion. I’d like to clarify the remarks I made that were included in the story.

It may seem that our confidentiality rule, RPC 1.6, is of ancient vintage and written in stone. Not so. The current language was adopted by the American Bar Association in its Model Rules of Professional Conduct in 1982. Washington’s rule, which is based on but not identical to the ABA Model Rule, was adopted in its present form in 2006. It is only the most recent official development in the long history of the profession’s efforts to balance the confidentiality-versus-disclosure interests at stake.

As I understand the author’s idea, it is this: let’s start a dialogue about whether the language of the ABA’s Model Rule 1.6 (and, by extension, our RPC 1.6) may be overbroad as applied to certain “innocuous” disclosures when considered in light of practicality and the behavior of the profession.

When interviewed by the author, I agreed that Model Rule 1.6, was drafted using language that, when read literally, creates an ethical duty of confidentiality for any information a lawyer learns in connection with a client matter, regardless of the source of the information. Read literally, Model Rule 1.6 creates a bright line test barring almost all disclosure and prohibiting the revelation of any such information to anyone, except as is impliedly authorized to carry out the representation or expressly permitted by one of the exceptions built into the rule. This is not a new or controversial reading of the Model Rule (although even this unremarkable perspective is not, as indicated in the article’s disclaimer, the official position of WSBA).

Whether the language was meant to be taken literally, and whether it is applied literally in practice, are different questions. This issue has been tepidly debated from time to time by commentators, and the Restatement (Third) of the Law Governing Lawyers does take a more liberal (i.e., non-literal) approach to whether and what types of disclosures are permitted and prohibited. Such an approach takes into account reasonableness of the lawyer’s conduct and risk of harm to the client when evaluating the ethical propriety of a disclosure. In the view of the Pillow Talk author, professional, personal, and practical realities about how lawyers deal with some kinds of client information are not well reflected in the language of Model Rule 1.6 or the Washington case authority interpreting RPC 1.6. In her view, the time has perhaps come to take another look at that rule and its language.

The author’s ideas about why it may be appropriate to re-evaluate the language of Model Rule 1.6 are interesting and arguable. They are not, however, supported by evidence that the WSBA Office of Disciplinary Counsel prosecutes, seeks to prosecute, or is eager to prosecute minor, innocuous lawyer disclosures. Washington lawyers have not been sanctioned for harmless, private, interpersonal disclosures of information that is public or generally known because such innocuous disclosures, even if they could technically be classified as “violations,” do not frequently generate grievances, and even if they did generate grievances, the situations would not likely merit the deployment of scarce disciplinary resources or public disciplinary action.

I do recommend a cautious, conservative approach when dealing with a client’s information, particularly in this day and age, when information is so elusive, unpredictable, and can be published globally in an instant. And there is something to be said for the view that it should not be up to the lawyer to speculate on whether particular information might be harmful to the client if it is disclosed. Even when the impulse to share an insignificant-seeming tidbit at a cocktail party is tempting, a balancing or cost-benefit analysis is always appropriate. As observed by Professor Wolfram:

A statement to a lawyer’s spouse that the lawyer must travel to a distant city overnight to argue a case for an identified client fits literally within the MR 1.6 prohibition. But to prohibit innocuous talk about a client would be senseless, would create a morbid secretiveness among over scrupulous lawyers, and, by trivializing it, would detract from the soundness of the confidentiality principle. Instead, MR 1.6 should be read to prohibit those needless revelations that incur some risk of harm to the client. Idle gossip, of course, should be prohibited because it incurs the risk of inadvertent disclosure of harmful client information and has no reason for utterance other than titillation or braggadocio.

— Charles W. Wolfram, Modern Legal Ethics (1986)

To be sure, a very cautious lawyer might decide never to talk about cases, thereby creating a wide margin for error against the risk of a prohibited disclosure and any possibility of adverse consequence. But that degree of scrupulousness is not identical to what the rule means or how it is interpreted by our courts and regulatory institutions.

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