Public-Record Exception to Confidentiality

I have been wondering whether the public-record exception will (and maybe should) be interpreted much more broadly than in the past, in view of the ready availability of information on the internet.  Here is a BNA report of a recent opinion that narrows the public-record exception considerably, in a way that I was not previously aware of.

Client Secrets May Include Matters of Public Record

An attorney's aggressive use of sensitive information against a former client violated the rule against divulging client confidences even though the information was arguably a matter of public record, the Iowa Supreme Court made clear June 5 (Iowa Supreme Court Attorney Disciplinary Bd. v. Plumb, Iowa, No. 08-1413, 6/5/09).

The lawyer crossed the boundary of appropriate zealous advocacy, the court said in an opinion by Justice Daryl L. Hecht, when, during a deposition in an unrelated case, he persisted in questioning the former client—over the client's invocation of the attorney-client privilege—about an embarrassing domestic abuse charge.

A client's secrets and confidences include any information a lawyer gains during the attorney-client relationship that would likely be detrimental to the client or that would prove “embarrassing,” the court said. Regardless of whether the criminal domestic abuse charges were a matter of public record, the court said, the lawyer should have backed off once it became clear to him that his ex-client regarded that history “as a distinct embarrassment.”

By persisting with this line of questioning despite the client's clear discomfort and distress, the court said, the lawyer violated DR 4–101(B)(1) (revealing confidences or secrets of client), DR 1–102(A)(1) (violation of a disciplinary rule), DR 1–102(A)(5) (conduct prejudicial to administration of justice), and DR 1–102(A)(6) (conduct adversely reflecting on fitness to practice law). The court concluded that a suspension, with no possibility of reinstatement for 18 months, was appropriate when it considered several other serious violations in other matters, including neglecting client matters and misusing client funds.

Comments

[Patrick S. O'Donnell]

Well, perhaps we might want to make a distinction between a public record and a PUBLIC RECORD, the latter being well-known and thus more or less common knowledge (to the relevant parties) while the former is something that is likewise in the public domain and accessible but not common knowledge, not something the relevant parties are aware of, etc. (but could, with some effort, retrieve, obtain...). In this case, the information was theoretically available yet germane to and acquired in the context of the attorney-client relationship and the lawyer was taking advantage of knowledge gained in THAT context, rather than simply or solely availing himself of the PUBLIC RECORD. After all, was he, strictly speaking, relying on public records? No, it just so happened that his knowledge was, at the same time, available in the public domain.

At least my first impression finds me concurring with the court's reasoning and attempting to favorably explain it. Anyway, just a thought, and maybe a feeble one at that....

[Monroe Freedman]

Your analysis is similar to what mine has been, Patrick (and others as well).

However, the court's analysis in this case is particularly interesting. There is a public-records exception to confidentiality, including information that is embarrassing to the former client. However, if the information is embarrassing to the client (or *really* embarrassing, or *very* embarrassing), then the exception doesn't apply.

It's an interesting way to interpret an exception to a rule.

[Alice Woolley]

Further to Patrick's idea of public record and PUBLIC RECORD I wonder if part of the issue her is iwth disclosure and DISCLOSURE. The lawyer wasn't simply using the information to, say, write an article about an academic point, or to advise another client "I represented X and this is what happened to him". The lawyer was using the information to the direct disadvantage of the former client. That seems to potentially bring in some conflicts issues as well (although I note none are cited) which might colour the understanding of how the information should have been dealt with, and the significance of its embarrassing quality.

I do share your view Monroe that a legal test based on "really" embarrassing as opposed to just "embarrassing" isn't especially helpful. It reminds me of a test once articulated by a CA here in an aboriginal title case - the "long, long time" test. I was never quite sure what adding the second "long" did other than turn the judgment into something reminiscent of grade 2.

[john steele]

I know that jurisdictions vary on the breadth of "confidences." At the extreme end, where there's a maximal definition, all sorts of conceptual problems ensue. Still, I have no trouble with the definition applying when as in that case, the former lawyer is using the information to hurt the former client.

[Barb Glesner Fines]

While the privilege may have a public records exception that implies a broad waiver, I certainly don't read such a broad exception into the rules of confidentiality. I know that Iowa applies the older Code, but in the vast majority of the states, which apply the Model Rules, there is no such exception in Rule 1.6. The only exception I see in the rules is in 1.9(c), providing only that an attorney 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 use information relating to the representation to the disadvantage of the former client except ... when the information has become generally known.

Under a Model Rules analysis, the attorney violated his duty of confidentiality here in two ways then -- first, he did not merely "use" the information but "disclosed it" (and the language of the rules does draw a distinction between the two) and the fact that the prior abuse charge was a matter of public record did not mean that it was "generally known."