United States District Court
Northern District Of Illinois
Local Rules
LR83.51.6. Confidentiality of Information
(a) Except when required under section (b) or permitted under section (c), a
lawyer shall not, during or after termination of the professional relationship with
the client, use or reveal a confidence or secret of the client known to the
lawyer unless the client consents after consultation.
(b) A lawyer shall reveal information about a client to the extent it appears
necessary to prevent the client from committing an act that would result in death
or serious bodily harm.
(c) A lawyer may use or reveal:
(1) confidences or secrets when permitted under these rules or required by law or
court order;
(2) the intention of a client to commit a crime in circumstances other than those
enumerated in LR83.51.6(b); or
(3) confidences or secrets necessary to establish or collect the lawyer’s fee or to defend the lawyer or the lawyer’s employees or associates against an accusation of wrongful conduct.
(d) The relationship of trained intervenor and a lawyer or a judge who seeks or
receives assistance through the Lawyers’ Assistance Program, Inc., shall be the same as that of lawyer and client for
purposes of the application of this rule and LR83.58.3.
(e) Any information received by a lawyer in a formal proceeding before a trained
intervenor, or panel of intervenors, of the Lawyers’ Assistance Program, Inc., shall be deemed to have been received from a client
for purposes of the application of this rule and LR83.58.3.
Committee Comment. General. The lawyer is part of a judicial system charged with upholding the law. One of
the lawyer’s functions is to advise clients so that they avoid any violation of the law
in the proper exercise of their rights.
The observances of the ethical obligation of a lawyer to hold inviolate
confidential information of the client not only facilitates the full development of
facts essential to proper representation of the client but also encourages
people to seek early legal assistance.
Almost without exception, clients come to lawyers in order to determine what
their rights are and what is, in the maze of laws and regulations, deemed to be
legal and correct. The common law recognizes that the client’s confidences must be protected from disclosure. Based upon experience,
lawyers know that almost all clients follow the advice given, and the law is upheld.
A fundamental principle in the client-lawyer relationship is that the lawyer
maintain confidentiality of information relating to the representation. The
client is thereby encouraged to communicate fully and frankly with the lawyer even
as to embarrassing or legally damaging subject matter.
The principle of confidentiality is given effect in two related bodies of law,
the attorney-client privilege (which includes the work product doctrine) in
the law of evidence and the rule of confidentiality established in professional
ethics. The attorney-client privilege applies in judicial and other proceedings
in which a lawyer may be called as a witness or otherwise required to produce
evidence concerning a client. The rule of client-lawyer confidentiality applies
in situations other than those where evidence is sought from the lawyer through
compulsion of law. The confidentiality rule applies not merely to matters
communicated in confidence by the client but also to all information relating to
the representation, whatever its source. A lawyer may not disclose such
information except as authorized or required by these rules of professional conduct or
other law. See also the discussion under the heading “Scope of the Rules of Professional Conduct” in the Comment section of LR83.50.1.
The requirement of maintaining confidentiality of information relating to
representation applies to government lawyers who may disagree with the policy goals
that their representation is designed to advance.
Authorized Disclosure. A lawyer is impliedly authorized to make disclosures about a client when
appropriate in carrying out the representation, except to the extent that the client’s instructions or special circumstances limit that authority. In litigation,
for example, a lawyer may disclose information by admitting a fact that cannot
properly be disputed, or in negotiation by making a disclosure that facilitates
a satisfactory conclusion.
Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the
firm, unless the client has instructed that particular information be confined to
specified lawyers.
Disclosure Adverse to Client. The confidentiality rule is subject to limited exceptions. In becoming privy
to information about a client, a lawyer may foresee that the client intends
serious harm to another person. However, to the extent a lawyer is required or
permitted to disclose a client’s purposes, the client will be inhibited from revealing facts which would
enable the lawyer to counsel against a wrongful course of action. The public is
better protected if full and open communication by the client is encouraged than
if it is inhibited.
Several situations must be distinguished.
First, the lawyer must never counsel or assist a client in conduct that is
criminal or fraudulent. See LR83.51.2(d). Similarly, a lawyer has a duty under LR83.53.3(a)(4) not to use
false evidence. This duty is essentially a special instance of the duty
prescribed in LR83.51.2(d) to avoid assisting a client in criminal or fraudulent
conduct.
Second, the lawyer may have been innocently involved in past conduct by the
client that was criminal or fraudulent. In such a situation the lawyer has not
violated LR83.51.2(d), because to “counsel or assist” criminal or fraudulent conduct requires knowing that the conduct is of that
character.
Third, the lawyer may learn that a client intends prospective conduct that is
criminal and likely to result in imminent death or substantial bodily harm. As
stated in section (b), the lawyer has the professional obligation to reveal
information in order to prevent such consequences. The lawyer must make such
disclosure in order to prevent homicide or serious bodily injury which the lawyer
reasonably believes is intended by a client, even though it is very difficult for
the lawyer to “know” when such a heinous purpose will actually be carried out, for the client may
have a change of mind.
Fourth, the lawyer may learn that a client intends to commit some other crime.
As stated in section (c)(2), the lawyer has professional discretion to reveal
that information. The lawyer’s exercise of discretion requires consideration of such factors as the nature
of the lawyer’s relationship with the client and with those who might be injured by the
client, the lawyer’s own involvement in the transaction and factors that may extenuate the
conduct in question.
In any instance in which the lawyer learns of a client’s intention to commit a crime, where practical the lawyer should seek to
persuade the client to take suitable action. In any case, a disclosure adverse to
the client’s interest should be no greater than the lawyer reasonably believes necessary
to the purpose. A lawyer’s decision not to take preventive action permitted by section (c)(2) does not
violate this rule.
Withdrawal. If the lawyer’s services will be used by the client in materially furthering a course of
criminal or fraudulent conduct, the lawyer must withdraw, as stated in
LR83.51.16(a)(2).
After withdrawal the lawyer is required to refrain from making disclosure of
the client’s confidence, except as otherwise provided in LR83.51.6. Neither this rule nor
LR83.51.16(d) prevents the lawyer from giving notice of the fact of
withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document,
affirmation, or the like.
Where the client is an organization, the lawyer may be in doubt whether the
contemplated conduct will actually be carried out by the organization. Where
necessary to guide conduct in connection with this rule, the lawyer may make
inquiry within the organization as indicated in LR83.51.13(b).
Dispute Concerning a Lawyer’s Conduct. Where a legal claim or disciplinary charge alleges complicity of the lawyer in
a client’s conduct or other misconduct of the lawyer involving representation of the
client, the lawyer may respond to the extent the lawyer reasonably believes
necessary to establish a defense. The same is true with respect to a claim involving
the conduct or representation of a former client. The lawyer’s right to respond arises when an assertion of such complicity has been made.
Section (c)(3) does not require the lawyer to await the commencement of an
action or proceeding that charges such complicity, so that the defense may be
established by responding directly to a third party who has made such an assertion.
The right to defend, of course, applies where a proceeding has been commenced.
Where practicable and not prejudicial to the lawyer’s ability to establish the defense, the lawyer should advise the client of the
third party’s assertion and request that the client respond appropriately. In any event,
disclosure should be no greater than the lawyer reasonably believes is necessary
to vindicate the innocence, the disclosure should be made in a manner which
limits access to the information to the tribunal or other persons having a need
to know it, and appropriate protective orders or other arrangements should be
sought by the lawyer to the fullest extent practicable.
If the lawyer is charged with wrongdoing in which the client’s conduct is implicated, the rule of confidentiality should not prevent the
lawyer from defending against the charge. Such a charge can arise in a civil,
criminal or professional disciplinary proceeding, and can be based on a wrong
allegedly committed by the lawyer against the client, or a wrong alleged by a third
person; for example, a person claiming to have been defrauded by the lawyer
and client acting together. A lawyer entitled to a fee is permitted by section
(c)(3) to prove the services rendered in an action to collect it. This aspect of
the rule expresses the principle that the beneficiary of a fiduciary
relationship may not exploit it to the detriment of the fiduciary. As stated above, the
lawyer must make every effort practicable to avoid unnecessary disclosure of
information relating to a representation to limit disclosure to those having the
need to know it, and to obtain protective orders or make other arrangements
minimizing the risk of disclosure.
Disclosures Otherwise Required or Authorized. The attorney-client privilege is differently defined in various jurisdictions.
If a lawyer is called as a witness to give testimony concerning a client,
absent waiver by the client, section (a) requires the lawyer to invoke the
privilege when it is applicable. The lawyer must comply with the final orders of a
court or other tribunal of competent jurisdiction requiring the lawyer to give
information about the client.
The rules of professional conduct in various circumstances permit or require a
lawyer to disclose information relating to the representation. See LR83.51.2(g), LR83.52.3, LR83.53.3, and LR83.54.1. In addition to these
provisions, a lawyer may be obligated or permitted by other provisions of law to
give information about a client. Whether another provisions of law supersedes
LR83.51.6 is a matter of interpretation beyond the scope of these rules, but a
presumption should exist against such a supersession.
Former Client. The duty of confidentiality continues after the client-lawyer relationship has
terminated.