Okla. Stat. tit. 5, Rule 1.6
Oklahoma Rules of Professional Conduct
Chapter 1, App. 3-A
Client-Lawyer Relationship
(c) A lawyer shall reveal such information when required by law or court order.
Comments
The lawyer is part of a judicial system charged with upholding the law. One of the lawyer's functions is to advise clients so that they avoid any violation of the law in the proper exercise of their rights. 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 also encourages people to seek early legal assistance. 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. A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence 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 applies not merely 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 required by the Rules of Professional Conduct; or other law. See also Scope. 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. Authorized Disclosure. 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. 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. The confidentiality rule is subject to limited exceptions. In becoming privy to information about a client, a lawyer may foresee that the client intends serious harm to another person. However, to the extent a lawyer is required or permitted to disclose a client's purposes, the client will be inhibited from revealing facts which would enable the lawyer to counsel against a wrongful course of action. Since lawyers must advise against the commission of deliberately wrongful acts, the public is better protected if full and open communication by the client is encouraged than if it is inhibited. Several situations must be distinguished. First, the lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. See Rule 1.2 (c). Similarly, a lawyer has a duty under Rule 3.3 (a)(4) not to use false evidence. This duty is essentially a special instance of the duty prescribed in Rule 1.2 (c) to avoid assisting a client in criminal or fraudulent conduct. Second, the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.2 (c), because to "counsel or assist" criminal or fraudulent conduct requires knowing that the conduct is of that character. Even if the involvement was innocent, however, the fact remains that the lawyer's professional services were made the instrument of the client's crime or fraud. The lawyer, therefore, has a legitimate interest in being able to rectify the consequences of such conduct, and has the professional right, although not a professional duty, to rectify the situation. Exercising that right may require revealing information relating to the representation. Paragraph (b)(2) gives the lawyer professional discretion to reveal such information to the extent necessary to accomplish rectification, provided that the lawyer first makes reasonable efforts to contact the client but is unable to do so, or if the lawyer is able to contact the client, the lawyer calls upon the client to rectify the criminal or fraudulent act and the client refuses or is unable to do so. However, the exercise of the lawyer's discretion in this regard must be guided by the potential for rectification of the consequences of the client's criminal or fraudulent conduct, and not considerations relating to the lawyer's own personal or professional reputation. Third, the lawyer may learn that a client intends prospective conduct that is criminal. As stated in paragraph (b)(1), the lawyer has professional discretion to reveal information in order to prevent a crime. The lawyer's exercise of discretion requires consideration of such factors as the nature of the lawyer's relationship with the client and with those who might be injured by the client, the severity and likelihood of harm, whether the harm is physical or financial, the lawyer's own involvement in the transaction and factors that may extenuate the conduct in question. Where practical, the lawyer should seek to persuade the client to take suitable action. Where the conduct is likely to result in imminent death or substantial harm to the person or financial interests of another, doubts should be resolved in favor of disclosure. 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 make the disclosures permitted by paragraphs (b)(1) and (b)(2) does not violate this Rule. Withdrawal. If the lawyer's services will be used by the client in materially furthering the course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16 (a)(1). After withdrawal the lawyer is required to refrain from making disclosure of the client's confidences, except as otherwise provided in Rule 1.6. Neither this Rule nor Rule 1.8 (b) nor Rule 1.16 (d) prevents the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like. Where the client is an organization, the lawyer may be in doubt whether contemplated conduct will actually be carried out by the organization. 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). Paragraph (b)(2) does not apply where a lawyer is employed after a crime or fraud has been committed to represent the client in matters ensuing therefrom. Dispute Concerning Lawyer's Conduct. 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 involving the conduct or representation of a former client. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(2) 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 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 which limits access to the information to the tribunal or other persons having a need to know it, and appropriate protective order or other arrangements should be sought by the lawyer to the fullest extent practicable. If the lawyer is charged with wrongdoing in which the client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge. Such a charge 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; for example, a person claiming to have been defrauded by the lawyer and client acting together. A lawyer entitled to a fee is permitted by paragraph (b)(2) 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. Disclosures Otherwise Required or Authorized. The attorney-client privilege is differently defined in various jurisdictions. If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, Rule 1.6 (a) requires the lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring a lawyer to give information about the client. The Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. See Rules 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, but a presumption should exist against such a supersession. Former Client. The duty of confidentiality continues after the client-lawyer relationship has terminated. Code Comparison The principle of confidentiality is enlarged in several respects and narrowed in a few respects compared with the corresponding provisions of the Code. The general principle is enlarged in the following respects: First, the confidentiality requirement applies to all information about a client "relating to the representation." Under the Code, DR 4-101, the requirement applies only to information governed by the attorney-client privilege and to information "gained in" the professional relationship that "the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client." Rule 1.6 thus imposes confidentiality on information relating to the representation even if it is acquired before or after the relationship existed. It does not require the client to indicate information that is to be confidential, or permit the lawyer to speculate whether particular information might be embarrassing or detrimental. Furthermore, this definition avoids the constricted definition of "confidence" that appears in some decisions. See Allegaert v. Perior, 434 F.Supp. 790 (S.D.N.Y. 1977); Moritz v. Medical Protective Co., 428 F.Supp. 865 (W.D.Wis. 1977); City of Wichita v. Chapman, 521 P.2d 589 (Kan. 1974). Rule 1.6 (a) permits a lawyer to disclose information where impliedly authorized in order to carry out the representation. Under DR 4-101 (B) and (C), a lawyer cannot disclose "confidences" unless the client first expressly consents after disclosure. Second, Rule 1.6 (b) defines the exceptions to the requirement of confidentiality. Under the Code, DR 4-101 (C)(3), a lawyer "may reveal the intention of his client to commit a crime and the information necessary to prevent the crime." This option exists regardless of the seriousness of the proposed crime. Rule 1.6 (b)(1) follows the Code provisions of DR 4-101 (C)(3), referred to above. Also, under DR 7-102 (B), the lawyer is required to reveal information necessary to "rectify" a "fraud upon a person or tribunal." DR 7-102 (B) applies to past frauds and presumably to future frauds if the client goes on to commit them. DR 7-102 (B), as amended by the ABA in 1974 and as adopted in some states, is subject to an amendment that disclosure is not permitted "when the information is protected as a privileged communication." Technically, this exception would only apply if the lawyer is under compulsion of law to testify, for only then would the information be "privileged." However, ABA Formal Opinion 341 (1975) construed the term "privilege" to include "confidences" as defined in DR 4-101 (A). Oklahoma did not adopt the 1974 ABA amendment excluding privileged communications, or ABA Opinion 341. Rule 1.6 (b)(2) permits a lawyer to reveal information necessary to rectify the consequences of a criminal or fraudulent act in the commission of which the lawyer's services were used, but makes it permissive rather than mandatory, as it had been under Oklahoma DR 7-102 (B), and also requires the lawyer to first call upon the client to rectify such act. With regard to Rule 1.6 (b)(3), DR 4-101 (C)(4) provides that a lawyer may reveal "confidences or secrets necessary to establish or collect his fee or to defend himself or his employers or associates against an accusation of wrongful conduct." Rule 1.6 (b)(3) enlarges the exception to include disclosure of information relating to claims by the lawyer other than for his fee, for example, recovery of property from the client. It narrows the exception dealing with defense against claims of wrongful conduct to situations where the client's conduct was involved. Oklahoma Modification Oklahoma broadened the ABA standard to allow a lawyer to reveal information pertaining to the intent of a client to commit any crime as opposed to a crime in which death or substantial bodily harm is likely to result, and the information necessary to prevent the crime. Oklahoma subsequently added 1.6 (b)(2) to retain the substance of Oklahoma DR 7-102 (B) governing rectification of fraudulent conduct in which the lawyer's services were used. Further, Oklahoma added a provision to clearly show that a lawyer shall reveal information when required by law or Court order. This continues the present Oklahoma rule. Historical Data Adopted effective July 1, 1988; amended by order of the Supreme Court dated February 8, 1993 and filed February 9, 1993.
Comment amended by order dated February 8, 1993 and filed February 9, 1993.
Rule 1.6. Confidentiality of Information