Discussion

DISCUSSION
7. The default rule under Rule 1.6(a) of the Utah Rules of Professional Conduct is that
all information relating to the representation of a client is confidential.2
This conclusion is based
upon the language of Rule 1.6(a) which provides that “[a] lawyer shall not reveal information
relating to the representation of a client unless the client gives informed consent, the disclosure is
impliedly authorized in order to carry out the representation or the disclosure is permitted by
paragraph (b).” Utah R. Prof. Cond. 1.6(a).
8. Wrongful disclosure of Confidential Information by an attorney is serious. “Shall”
is an imperative. It defines “proper conduct for purposes of professional discipline.” Utah R. Prof.
Cond., Preamble: A Lawyer’s Responsibilities, ¶ 14.
9. There are three exceptions to the rule forbidding a lawyer’s disclosure of
Confidential Information. First, a lawyer may disclose Confidential Information if the client gives
informed consent. Utah R. Prof. Cond. 1.6(a). Second, the lawyer may disclose Confidential
Information if that information is impliedly authorized to carry out the representation. Utah R.
Prof. Cond. 1.6(a). Otherwise, the lawyer may not disclose Confidential Information unless the
disclosure is permitted under Rule 1.6(b).
1 The EOAC’s undertaking this Opinion should not be construed as a license to request ethics
advisory opinions without adequate factual background. Here, the EAOC is convinced that the
answers to the questions would be helpful to the general bar, as the EAOC perceives that there is
a substantive question posed in the short request.
2 The term “Confidential Information” as used in this Opinion means information related to the
representation of a client that is protected under Rule 1.6(a) of the Utah Rules of Professional
Conduct.
10. With respect to the informed consent of the client, the lawyer must evaluate the
risks and benefits of disclosure. This information must be communicated to the client. The client
must thereafter give informed consent. “Informed consent” is defined as “the agreement by a
person to a proposed course of conduct after the lawyer has communicated adequate information
and explanation about the material risks of and reasonably available alternatives to the proposed
course of conduct.” Utah R. Prof. Cond. 1.0(f). Informed consent should be confirmed in writing
at the time the client gives informed consent or within a reasonable time thereafter. Utah R. Prof.
Cond. 1.0 cmt. [1].
11. The lawyer should never assume that the client has given informed consent.
Further, if a lawyer does not personally communicate the risks and benefits of disclosure of
Confidential Information, then the lawyer assumes the risksthat the client is inadequately informed
and that the consent is invalid. Utah R. Prof. Cond. 1.0 cmt. [6].
12. The second exception to the prohibition of disclosure of Confidential Information
is when the disclosure is impliedly authorized in order to carry out the representation. Common
examples include a lawyer who enters an appearance in litigation or who represents someone in
settlement negotiations.
13. The third exception allows disclosure in limited circumstances under Rule 1.6(b)
of the Utah Rules of Professional Conduct to the extent the lawyer reasonably believes necessary.

Rule 1.6(b) contemplates circumstances where the lawyer’s duty to protect the public and other
interests outweigh the client’s expectation of confidentiality. Those circumstances include the
prevention of reasonably certain death or substantial bodily harm. Utah R. Prof. Cond. 1.6(b)(1).
3 The EAOC notes that the duty of confidentiality under Rule 1.6 of the Utah Rules of Professional
Conduct is broader that the attorney-client privilege found in Rule 504 of the Utah Rules of
Evidence.
The lawyer may disclose information to prevent the client from “committing a crime or fraud that
is reasonably certain to result in substantial injury to the financial interests or property of another
and in furtherance of which the client has used or is using the lawyer’s services.” Utah R. Prof.
Cond. 1.6(b)(2). The lawyer may also disclose Confidential Information “to prevent, mitigate or
rectify substantial injury to the financial interests or property of another that is reasonably certain
to result or has resulted from the client’s commission of a crime or fraud in furtherance of which
the client has used the lawyer’s services.” Utah R. Prof. Cond. 1.6(b)(3).
14. In this context “reasonable” “denotes the conduct of a reasonably prudent and
competent lawyer.” Utah R. Prof. Cond. 1.0(k). Further, “reasonable belief” means that “the
lawyer believes the matter in question and that the circumstances are such that the belief is
reasonable.” Utah R. Prof. Cond. 1.0(l). “Substantial” denotes a “material matter of clear and
weighty importance.” Utah R. Prof. Cond. 1.0(p).
15. Rule 1.6(b), together with the definitions of “reasonable,” “reasonable belief,” and
“substantial,” indicate that these exceptions require more than ordinary suspicion that the client
will misbehave. Rule 1.6(b) contemplates that such exceptions would be relatively rare and that
the lawyer should not disclose Confidential Information unless doing so is “necessary to enable
affected persons or appropriate authorities to prevent the client from committing a crime or fraud
that is reasonably certain to result in substantial injury to the financial or property interests of
another and in furtherance of which the client has used or is using the lawyer’s services.” Utah R.
Prof. Cond. 1.6 cmt. [7].
16. The lawyer may disclose Confidential Information needed to protect herself. Thus,
she may seek advice as to her compliance with the Utah Rules of Professional Conduct. Utah R.
Prof. Cond. 1.6(b)(4). The lawyer may disclose Confidential Information related to a dispute
between the client and herself. The lawyer is also authorized to disclose Confidential Information
to defend herself against criminal charges against her arising out of the representation. Utah R.
Prof. Cond. 1.6(b)(5). The lawyer may disclose Confidential Information “to comply with other
law or a court order.” Rule 1.6(b)(6). Finally, the lawyer may disclose Confidential Information
to resolve conflicts arising from the lawyer’s change of employment. Utah R. Prof. Cond.
1.6(b)(7).
17. If a lawyer is served with a subpoena seeking to compel disclosure of Confidential
Information related to the representation of a client, the lawyer must determine whether the
information compelled is protected by any privilege or rule. If it is, the lawyer must inform the
client about the subpoena and discuss what privileges or objections could be asserted in response
to the subpoena and the consequences of waiving any privileges or objections. The lawyer should
also consider whether there are grounds for entry of a protective order limiting the information
sought or its use or disclosure. The lawyer must assert nonfrivolous privileges and raise
nonfrivolous objections to the subpoena unless the client gives informed consent to waive them.
If the court orders the lawyer to comply with the subpoena, then “the lawyer must consult with the
client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought,
however, paragraph (b)(6) permits the lawyer to comply with the court’s order.” Utah R. Prof.
Cond. 1.6 cmt. [15]. The lawyer’s duty is to maintain client confidentiality unless and until
compelled to do so by proper order of a tribunal.

CONCLUSION
18. Rule 1.6 of the Utah Rules of Professional Conduct establishes the default position
that the identity of a client, the source of funding for the attorney’s fees, and the fee agreement are
confidential, unless an express exception is found in either Rule 1.6(a) or Rule 1.6(b).