In December, the ABA issued Formal Opinion 479, clarifying the concept of “generally known” in ABA Model Rule 1.9(c)(1). Confidentiality
Under the rule, “A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these rules would permit or require with respect to a client.”
Confidentiality is one of the foundational concepts of professional responsibility, and an attorney’s duty of confidentiality extends to both former and current clients. ABA Model Rule 1.9(c)(1) provides that an attorney cannot use information related to the representation of a former client in a way that disadvantages that client devoid of their informed consent, unless that information has become “generally known.”
The “generally known” exception of Rule 1.9(c)(1) has been the subject of some debate. As such, the ABA Standing Committee on Ethics and Professional Responsibility recently provided guidance on the connotation of this exception in Formal Opinion 479. Courts have held that information is “not generally known just because it’s a public record or in a court filing. The information must be within the understanding and knowledge of the general public.” Opinion 479 states that information is generally known if “(a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession or trade.” The ABA Opinion adds that information can become widely recognized through “traditional media sources, such as newspapers, magazines, radio or television; through publication on internet websites; or through social media.”
Additionally, the Opinion states that “information that is publicly available is not necessarily generally known.” “Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).” The opinion adds that “for information to be generally known, it must previously have been revealed by some source other than the lawyer or the lawyer’s agents.”
Opinion 479 is in concurrence with numerous state bar ethics opinions, such as the 2017 New York State Bar Association Committee on Professional Ethics, which state that “information is not ‘generally known’ simply because it is in the public domain or available in a public file.”
Read ABA Formal Opinion 479 here. To read the ABA Journal article on the Opinion, click here.
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