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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-3695" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2017/12/Confidentiality3-300x270.jpg" alt="" width="300" height="270">Holiday parties are great&nbsp;times to socialize and network with colleagues.&nbsp; But the casual atmosphere and the sometimes-plentiful adult beverages can also tempt you to tell war stories that reveal too&nbsp;much about your past clients, potentially violating your continuing duty of confidentiality under <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients.html">Model Rule 1.9</a>.&nbsp; But what&rsquo;s &ldquo;too much&rdquo;?&nbsp; If something&nbsp;about a&nbsp;previous&nbsp;case or transaction&nbsp;you were involved in&nbsp;is in the news, or is&nbsp;contained&nbsp;in court pleadings, can you discuss it?
The simple answer is &ldquo;Not really.&rdquo;&nbsp; Model Rule 1.9(c)(2)&nbsp;says that you have the same duty not to reveal information relating to the representation of your former client as you do&nbsp;to a current client.&nbsp; That&rsquo;s a very broad&nbsp;duty:&nbsp; it extends to all information &ldquo;relating to the representation&rdquo; (i.e., much broader than the attorney-client evidentiary privilege).&nbsp; That effectively rules out war stories that would be detailed enough to let your audience figure out who you are talking about.
When is former-client info &ldquo;generally known&rdquo;?
Outside of the cocktail party context, how about using&nbsp;information adverse to a former client?&nbsp; For instance, you might be in a position to use information you have acquired about the workings of a former client&rsquo;s business without actually revealing it.&nbsp; Rule 1.9(c)(1) says that&nbsp;such use is prohibited, subject to an interesting exception &mdash; it can be used&nbsp;&ldquo;when the information has become generally known.&rdquo;&nbsp;&nbsp;That seems like a common-sense exception that strikes an appropriate balance between the former client&rsquo;s valid interest in continuing confidentiality and the fact that you are no longer counsel to that client.
However, the definition of &ldquo;generally known&rdquo; can seem pretty narrow.&nbsp;&nbsp;Last year, we wrote about a <a href="https://www.thelawforlawyerstoday.com/2016/03/2433/">disqualification case</a> holding that even information that&rsquo;s &ldquo;of record&rdquo; in a court file&nbsp;may not be &ldquo;generally&nbsp;known&rdquo; for purposes of meeting the exception.&nbsp;&nbsp;Now comes the ABA Ethics Committee&rsquo;s take on that issue, published last week.
In <a href="http://filehost.thompsonhine.com/uploads/aba_formal_opinion_479.authcheckdam_5247.pdf">Opinion 479,</a> the committee agreed that information is &ldquo;not generally known merely because it is publicly available or ...[is] a matter of public record,&rdquo; and noted numerous authorities that have reached that&nbsp;conclusion.&nbsp;&nbsp;So when is&nbsp;former-client information &ldquo;generally known&rdquo;?
Citing New York rules commentator <a href="https://law.hofstra.edu/directory/faculty/emeritus/simon/">Roy Simon</a> and a 2013 New York state <a href="http://www.nysba.org/CustomTemplates/Content.aspx?id=45363">ethics opinion</a>, the ABA committee said that for Rule 1.9 purposes, information&nbsp;is generally known under two circumstances:
<ul>
<li>it&rsquo;s widely recognized by the public in the relevant locale; or</li>
<li>it&rsquo;s widely recognized in the former client&rsquo;s industry, profession or trade.</li>
</ul>
&ldquo;Workable definition&rdquo;
This &ldquo;workable definition,&rdquo; said the ABA committee,&nbsp;encompasses publicity through traditional&nbsp;media sources, the internet and through social media &mdash; channels that can lead to public notoriety.&nbsp; And publicity in leading sources&nbsp;in a particular field can meet the &ldquo;generally known&rdquo; test if members of the industry, trade or profession would widely recognize those sources.&nbsp;&nbsp;&ldquo;Information may be widely recognized within a former client&rsquo;s industry, profession, or trade without being widely recognized by the public,&rdquo; said the ABA committee.
But the committee reiterated that unless information has become widely recognized by the pubic, or within the former client&rsquo;s industry, the fact that the information may have been discussed in open court, or may be available in court records does not necessarily signal that it is &ldquo;generally known.&rdquo;
Party safely and ethically
When you&rsquo;re at a holiday gathering&nbsp;with your brother- and sister-members of the bar,&nbsp;have fun&nbsp;&mdash; but at the same time, watch what you imbibe (and designate a driver) and watch what you say.&nbsp; Being judicious in both regards&nbsp;is the best way to enjoy the season without regret.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

ABA explains when former-client info is “generally known” and can be used