ABA issues ethical guidance on exception to former-clients confidentiality

The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 479, which defines when something is “generally known” for purposes of triggering an exception to the prohibition on using a former client’s confidential information.

The ABA Model Rules of Professional Conduct prohibit lawyers from revealing confidential information about former clients without their permission. Model Rule 1.9(c)(1), however, says a lawyer may use such information “to the disadvantage of the former client” when the information has become “generally known.” The term is not defined in the model rules.

Formal Opinion 479 advises that information is “generally known” if it is “widely recognized by members of the public in the relevant geographic area or it is widely recognized in the former client’s industry, profession, or trade.” Information may become “generally known” as a result of publicity in newspapers, magazines, radio, television, websites or social media, according to the opinion.
Information may become “generally known” within an industry if it is “announced, discussed or identified” in “a leading print or online publication or other resource in the particular field.”

Formal Opinion 479 cautions that information is not “generally known” just because it has been discussed in open court, or is available in court records, public libraries or other public repositories.
“Information that is publicly available is not necessarily generally known,” the opinion states.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to advise lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.

Formal Opinion 479 and previous ABA ethics opinions are available on the ABA Center for Professional Responsibility website.