On the Absurdity of Model Rule 1.9

Abstract

Most lawyers understand they cannot disclose a former client’s confidences or secrets. But ABA Model Rule 1.9 - the rule of confidentiality adopted in nearly every state - actually prohibits an attorney from discussing, writing about, or otherwise disclosing any “information relating to the representation” of the former client. This class of protected information is so broad that it even includes public information (such as the former client’s published appellate court decision) that is easily accessible by anyone on the Internet.

Rule 1.9 is an absurdly broad rule that perpetually bans attorney speech for all purposes and with regard to all information, including information in the public domain. The rule has no rational, underlying policy, and is not even rooted in clients’ actual expectations regarding confidentiality. Rule 1.9 is also unsound in practice, producing some very bizarre and harmful results - often for the very clients the rule was supposedly designed to protect.

Instead, Rule 1.9 should be interpreted to permit an attorney to discuss, write about, or otherwise disclose publicly-available information relating to a former client’s case, provided the attorney does not contradict the former client’s position in that case. This new approach is theoretically sound, easy to apply, and fully aligned with former clients’ actual expectations that their attorney remain loyal, not silent, with regard to public information. This approach also serves other important interests, including the public’s need for critical commentary about the legal system and the individual attorney’s right to free speech.

Keywords: Legal Ethics