• Preamble
• Scope
• Chapter 1: Client-lawyer Relationship
  • Rule 1.0 Definitions
  • Rule 1.1 Competence
  • Rule 1.2 Scope of the Representation and the Allocation of Authority Between the Lawyer and Client
  • Rule 1.3 Diligence
  • Rule 1.4 Communication
  • Rule 1.5 Fees
  • Rule 1.6 Confidentiality
  • Rule 1.7 Conflict of Interest: General Rule
  • Rule 1.8 Conflict of Interest: Prohibited Transactions
  • Rule 1.9 Conflict of Interest: Former Client
  • Rule 1.10 Imputed Disqualification: General Rule
  • Rule 1.11 Successive Government and Private Employment
  • Rule 1.12 Former Judge or Arbitrator
  • Rule 1.13 Organizational Clients
  • Rule 1.14 Client under a Disability
  • Rule 1.15 Safekeeping Property
  • Rule 1.16 Declining and Terminating Representation
  • Rule 1.17 Sale of a Law Practice
• Chapter 2: The Lawyer as Counselor, Intermediary, and Dispute Resolution Neutral
  • Rule 2.1 Advisor
  • Rule 2.2 Lawyer Serving as Intermediary Between Clients
  • Rule 2.3 Evaluation for Use by Third Persons
  • Rule 2.4 Lawyer as Dispute Resolution Neutral
• Chapter 3: Advocate
  • Rule 3.1 Meritorious Claims and Contentions
  • Rule 3.2 Expediting Litigation
  • Rule 3.3 Candor Toward the Tribunal
  • Rule 3.4 Fairness to Opposing Party and Counsel
  • Rule 3.5 Impartiality and Decorum of the Tribunal
  • Rule 3.6 Trial Publicity
  • Rule 3.7 Lawyer as Witness
  • Rule 3.8 Special Responsibilities of a Prosecutor
  • Rule 3.9 Advocate in Non-adjudicative Proceedings
• Chapter 4: Transactions with Persons Other than Clients
  • Rule 4.1 Truthfulness and Candor in Statements to Others
  • Rule 4.2 Communication with Person Represented by Counsel
  • Rule 4.3 Dealing with Unrepresented Person
  • Rule 4.4 Respect for Rights of Third Persons
• Chapter 5: Law Firms, Legal Departments, and Legal Service Organizations
  • Rule 5.1 Responsibilities of a Partner, Managing Lawyer or Supervisory Lawyer
  • Rule 5.2 Responsibilities of a Subordinate Lawyer
  • Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
  • Rule 5.4 Professional Independence of a Lawyer
  • Rule 5.5 Unauthorized Practice of Law
  • Rule 5.6 Restrictions on Right to Practice
  • Rule 5.7 Responsibilities Regarding Law-related Services
• Chapter 6: Public Service
  • Rule 6.1 Pro Bono Publico Representation
  • Rule 6.2 Accepting Court Appointments
  • Rule 6.3 Membership in Legal Services Organization
  • Rule 6.4 Law Reform Activities Affecting Client Interests
• Chapter 7: Information about Legal Services
  • Rule 7.1 Communications Concerning a Lawyer's Services
  • Rule 7.2 Advertising and Other Communications Not Directed to Specifically Identified Recipients
  • Rule 7.3 Solicitation and Other Communications Directed to Specifically Identified Recipients
  • Rule 7.4 Communication of Fields of Practice
  • Rule 7.5 Firm Names and Letterheads
  • Rule 7.6 Intermediary Organizations
• Chapter 8: Maintaining the Integrity of the Profession
  • Rule 8.1 Bar Admission and Disciplinary Matters
  • Rule 8.2 Judicial and Legal Officials
  • Rule 8.3 Reporting Professional Misconduct
  • Rule 8.4 Misconduct
  • Rule 8.5 Disciplinary Authority; Choice of Law
• Transition Rules Governing Implementation of Tennessee Rules of Professional Conduct
•  

(a) Except as provided below, a lawyer shall not reveal information relating to the representation of a client unless the client consents after consultation, except that the lawyer may make such disclosures as are impliedly authorized by the client in order for the lawyer to carry out the representation.

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes disclosure is necessary:

(1) to prevent the client or another person from committing a crime, including a crime that is reasonably certain to result in substantial injury to the financial interest or property of another, unless disclosure is prohibited or restricted by Rule 3.3;

(2) to secure legal advice about the lawyer’s compliance with these Rules; or

(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

(c) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes disclosure is necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to comply with an order of a tribunal requiring disclosure, but only if ordered to do so by the tribunal after the lawyer has asserted on behalf of the client all non-frivolous claims that the information sought by the tribunal is protected against disclosure by the attorney-client privilege or other applicable law; or

(3) to comply with Rules 3.3, 4.1, or other law.

[1] This Rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer’s representation of the client. With respect to the use of such information to the disadvantage of the client, see Rule 1.8(b). With respect to disclosure and adverse use of information relating to the representation of a former client, see Rule 1.9(c).

[2] The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client, but it also encourages people to seek early legal assistance.

[3] Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the maze of laws and regulations, deemed to be legal and correct. The common law recognizes that the client’s confidences must be protected from disclosure. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.

[4] A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.

[5] The principle of lawyer-client confidentiality is given effect by related bodies of law, including the attorney-client privilege, the work-product doctrine, and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. 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. A lawyer may not disclose such information except as authorized or as required by the Rules of Professional Conduct or other law. See also Scope Comment [7].

[6] The requirement of maintaining confidentiality of information relating to representation applies to government lawyers who may disagree with the policy goals that their representation is designed to advance.

[7] Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer’s use of hypotheticals to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

Authorized Disclosure

[8] 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.

[9] Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

Disclosure Adverse to Client

[10] Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. For example, paragraph (b)(1) enables the lawyer to reveal information to the extent necessary to prevent the client from committing a crime. The client can, of course, prevent such disclosure by refraining from the wrongful conduct. Although Paragraph (b)(1) does not require that the lawyer reveal the client’s misconduct, the lawyer may not in any way counsel the client to engage, or assist the client, in conduct that the lawyer knows is criminal or fraudulent. See RPC 1.2(d); see also RPC 1.16 (respecting the lawyer’s obligation or right to withdraw from the representation of the client in such circumstances). Where the client is an organization, the lawyer may be in doubt whether contemplated conduct will actually be carried out by the organization’s constituents. Where necessary to guide conduct in connection with this Rule, the lawyer may make inquiry within the organization as indicated in Rule 1.13(b). Rule 3.3, rather than paragraph (b)(1) of this Rule governs disclosure of a client’s intention to commit perjury or other crimes in connection with an adjudicative proceeding.

[11] In addition, paragraph (b)(2) states that a lawyer’s confidentiality obligations do not preclude a lawyer from securing legal advice about the lawyer’s personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(2) permits such disclosure because of the importance of a lawyer’s compliance with the Rules of Professional Conduct. For the protection of the client, such disclosures may be made only if they will be protected by the attorney-client privilege.

[12] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client’s conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim brought by the lawyer involving the conduct or representation of a former client, such as when in-house counsel brings suit to redress his or her discharge from an organizational employer in retaliation for abiding by, or refusing to violate, a clear expression of public policy in the Rules of Professional Conduct. See also RPC 1.16 Comment [4]. Other charges can arise in a civil, criminal, or professional disciplinary proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, such as a person claiming to have been defrauded by the lawyer and client acting together. The lawyer’s right to respond under these circumstances arises when an assertion of such complicity has been made. Paragraph (b)(3) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend, of course, applies where a proceeding has been commenced. Where practicable and not prejudicial to the lawyer’s ability to establish the defense, the lawyer should advise the client of the third party’s assertion and request that the client respond appropriately. In any event, disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.

[13] A lawyer entitled to a fee is permitted by paragraph (b)(3) to prove the services rendered in an action to collect it. This aspect of the Rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary. As stated above, the lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure.

[14] Paragraph (b) permits but does not require the disclosure or use of information relating to a client’s representation to accomplish the purposes specified in paragraphs (b)(1) through (3). In exercising the discretion conferred by this Rule, the lawyer may consider such factors as the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction, and any other factors that may extenuate the conduct in question. Where practical, the lawyer should seek to persuade the client to take suitable action. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to the purpose. A lawyer’s decision not to take preventive action permitted by paragraph (b) does not violate this Rule.

Disclosure Otherwise Required or Authorized

[15] The Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. See RPCs 2.2, 2.3, 3.3, and 4.1. In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client. Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules.

[16] Paragraph (c)(1) recognizes the overriding value of life and physical integrity and requires disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Substantial bodily harm includes life threatening and debilitating illnesses and the consequences of child sexual abuse. Such injuries are reasonably certain to occur if they will be suffered imminently or if there is a present and substantial threat that a person will suffer such injuries at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply must reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims.

[17] As provided by paragraph (c)(2), a lawyer must also comply with lawful orders of a tribunal, an administrative or executive agency, or a legislative body. If a lawyer is called as a witness to give testimony concerning a client, or is otherwise ordered to reveal information relating to the client’s representation, the lawyer must, absent authorization from the client to do otherwise, assert on behalf of the client all non-frivolous claims that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer should consult with the client about the possibility of appealing the adverse ruling. See RPCs 1.4 and 1.2. Unless an appeal is taken, the lawyer must comply with the order.

Acting Competently to Preserve Confidentiality

[18] A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or by other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See RPCs 1.1, 5.1, and 5.3.

[19] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer utilize special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.

Former Clients

[20] The duty of confidentiality continues after the client-lawyer relationship has been terminated. See RPC 1.9(c).

“Consultation” See RPC 1.0(c)
“Fiduciary” See RPC 1.0(d)
“Fraud” See RPC 1.0(f)
“Reasonably” See RPC 1.0(j)
“Reasonably Believes” See RPC 1.0(k)
“Substantial” See RPC 1.0(m)
“Tribunal” See RPC 1.0(n)