ABA Fleshes Out ‘Generally Known’ Exception to Confidentiality

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By Joan C. Rogers

Lawyers can’t use a former client’s confidential information to its disadvantage just because the information is in court records or other public repositories, according to a new ABA ethics opinion.

The “generally known” exception to the rule that forbids harmful use of a former client’s confidences applies only to “widely recognized” information, the ABA ethics committee advised (ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 479, 12/15/17).

A wealth of detailed information on just about everything is only a few clicks away these days. But “publicly available” isn’t the same as “generally known,” the new ABA guidance makes clear.

The opinion focuses on Rule 1.9(c)(1) of the Model Rules of Professional Conduct, which forbids a lawyer from using confidential information about former clients to their disadvantage unless the information has become “generally known.”

The “generally known” exception is limited, the committee said. First, it applies only to the use of former-client information, not its disclosure.

Second, the exception applies to information only 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.”

‘Widely Recognized’

Information may become widely recognized and thus generally known as a result of publicity in traditional media sources, via publication on internet websites, or through social media, the committee said.

For information in the ex-client’s industry, profession, or trade, the information should be treated as generally known if it’s announced, discussed, or identified in a leading publication or source in the particular field—even if it’s not known to the public at large, the committee advised.

“Information that is publicly available is not necessarily generally known,” the opinion states.

Information isn’t necessarily generally known just because it was discussed in open court or it’s available in court records, public libraries, or other public places, the committee advised.

Also, if information is publicly available but requires specialized knowledge or expertise to locate, it’s not generally known within the meaning of Model Rule 1.9(c)(1), the committee said.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bloomberglaw.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bloomberglaw.com

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