The Washington Supreme Court recently addressed the scope of the confidentiality rule—RPC 1.6—in In re Cross, __ Wn.2d __, __ P.3d __, 2021 WL 6068825 (Dec. 23, 2021). Cross had represented a client in a criminal case arising out of an accident involving an all-terrain vehicle the client was driving. When the criminal case resolved, Cross and the client held a confidential discussion about the possibility of pursuing a product liability claim against the ATV manufacturer. Based on Cross’s advice, the client decided not to file a product liability claim. A passenger in the ATV accident later sued Cross’s by-then former client. When the former client’s defense lawyer in the civil case moved to add an affirmative defense attributing the accident to a product defect, the passenger opposed the motion. To support the opposition, the passenger’s lawyer obtained a declaration from Cross in which he disclosed the confidential conversation he had with the former client evaluating the possibility of bringing a product claim and revealing that the former client had decided not to pursue such a claim in light of the costs and risks. A bar grievance followed.
Cross did not contest the central facts of the grievance and admitted that providing a declaration against his former client was a “mistake.” His principal defense was that he did not understand revealing the information involved violated the RPCs and that his actions were instead merely negligent.
The Supreme Court made three principal points in disciplining the lawyer.
First, the Supreme Court noted that RPC 1.6(a) broadly prohibits a lawyer from revealing (absent exceptions not applicable in Cross) “information relating to the representation of a client.” The Supreme Court observed that the comments to RPC 1.6 underscore that the duty of confidentiality under RPC 1.6 includes the attorney-client privilege but is broader than privilege standing alone. The predicate phrase “information relating to the representation of a client” is neither new nor novel. RPC 1.6 has included that term since 2006 (when it replaced “confidences and secrets”) and it is patterned on the corresponding ABA Model Rule. Again, absent exceptions not applicable in Cross, the duty of confidentiality generally extends beyond the end of an attorney-client relationship under RPC 1.9(c) (that governs the continuing duty of confidentiality to former clients).
Second, notwithstanding the broader potential scope of the current rule than its pre-2006 predecessor, the Supreme Court found, in essence, that Cross would have violated the old rule, too, because his declaration revealed confidential attorney-client communications that fell within privilege. As the Supreme Court put it: “[A] discussion with a client about the pros and cons of filing a civil lawsuit is privileged and confidential.” Id. at *6 (emphasis in original).
Finally, the Supreme Court concluded that “a lawyer need not know that his intentional actions violated the RPCs for those actions to be considered ‘knowing.’” Id.
Cross serves as both a useful reminder of the broad sweep of our duty of confidentiality under RPC 1.6 and as a cautionary example suggesting being very wary of any request from a third party to reveal confidential information without clear consent from the client involved.
Mark Fucile. Mark handles professional responsibility, regulatory and attorney-client privilege matters throughout the Northwest. He has chaired the WSBA Committee on Professional Ethics and is a co-editor of the Bar’s publications “Law of Lawyering in Washington” and the Legal Ethics Deskbook. He can be reached at 503-224-4895 or mark@frllp.com.
