Getting It Right: In-House Counsel Ethics Issues

Transcription

1 Getting It Right: In-House Counsel Ethics Issues James L. Altman Richard W. Painter Kenneth L. Jorgensen Xcel Energy Inc. Vice President and Deputy General Counsel Minneapolis, Minnesota University of Minnesota Law School S. Walter Richey Professor of Corporate Law Minneapolis, Minnesota Dorsey & Whitney LLP (612) Minneapolis, Minnesota Contents (available on 1. PowerPoint 2. Selected Minnesota Rules of Professional Conduct, Effective October 1, 2005, with amendments through July 1, 2010

2 Getting It Right: In-House Counsel Ethics Issues James L. Altman Vice President and Deputy General Counsel, Xcel Energy Inc. Richard W. Painter S. Walter Richey Professor of Corporate Law, University of Minnesota Law School Kenneth L. Jorgensen Dorsey & Whitney LLP 1

3 Trial Run: Which of the following categories best fits you? (A) Private Company or Firm (B) Public Company or Firm (C) Government (D) Other 2

4 Confidentiality and Up-the-Ladder Reporting Rules 1.6 and 1.13 Jared is House Counsel for Dugout Inc., a local private company with branch facilities in New York and New Jersey. Several months ago Dugout publicly announced that it had retro-fitted its manufacturing facility to reduce emissions by 30%. A local Non-Profit, as part of its Green Initiative, will be doing a cover story and awarding free advertising for a year in its local magazine, for the company whose efforts are determined to provide the greatest green benefit to the local community. The Non-Profit has notified Dugout that it is in the running for the award based on the announcement. 3

5 The Problem Jared recently learned that although some emission readings show a 30% reduction, on average reduced emissions have been 20%. Jared recommends to Dugout s CEO, who is also Dugout s majority shareholder, that the public announcement be corrected and that the Non-Profit be notified. The CEO disagrees and tells Jared he can quit if he disagrees with the decision. Jared threatens to disclose the information to the Non-Profit. 4

6 Question 1: Jared s Threat to Disclose the Information to Non-Profit Is: (A) Proper because as counsel for an organization he is obligated to disclose information that is a violation of the law and may be imputed to the organization. (B) Improper because as a lawyer Jared owes a duty of confidentiality to the organization and none of the exceptions to confidentiality applies to these facts. (C) Proper because although the information is confidential, the confidentiality exception relating to client fraud would apply under these facts. (D) Improper because Jared must first refer the matter to Dugout s Board of Directors before reporting the matter outside of the Company. 5

7 Answer Analysis Correct Answer: (B) Jared s threat is improper because as a lawyer Jared owes a duty of confidentiality to the organization and none of the exceptions to confidentiality applies to these facts. Incorrect Answer: (C) Although the information is confidential, the confidentiality exceptions (below) relating to client fraud would not apply under these facts. 1.6(b)(5) information necessary to rectify the consequences of a client s fraudulent act but this exception requires that the lawyer s services have been used in the fraud. 1.6(b)(4) information necessary to prevent the commission of a crime however if there is a crime, Dugout already committed the crime. 6

8 The Other Incorrect Answers: (A) Proper because as counsel for an organization he is obligated to disclose information that is a violation of the law and may be imputed to the organization; and (D) Improper because Jared must first refer the matter to Dugout s Board of Directors before reporting the matter outside of the Company. Analysis: Although normal remediation under Rule 1.13 does require up the ladder reporting, Minnesota did not adopt the ABA version of Rule 1.13 which permits house counsel to report or disclose confidential information to outsiders. 7

9 More Confidentiality and Up-the-Ladder Reporting Rules 1.6 and 1.13 After his discussion with the CEO, Jared was concerned about his ethical obligations and his tenure as House Counsel. At Thanksgiving Jared bounced the matter off of his brother who has a JD and an MBA in Human Resources. Although his brother never obtained a law license, he works in the HR department at a Fortune 500 company and is very familiar with corporate reporting obligations and SOX issues. Jared then consulted with a local lawyer who specializes in legal ethics. 8

10 Question 2: Which Is the Correct Answer? (A) Jared s consultation with his brother and the ethics lawyer is permissible provided both agree to keep the matter confidential. (B) Jared s discussion of the matter with the ethics lawyer was permissible. (C) Jared should not have discussed the matter with anyone outside of the Company without first asking the Company to seek a second opinion. (D) Jared was required to have the Company retain the ethics lawyer to represent the company before he was authorized or permitted to disclose confidential company information. 9

11 The Correct Answer Is: (B) Jared s Discussion of the Matter with the Ethics Lawyer Was Permissible. Applicable Confidentiality Exception: Rule 1.6(b)(7) the lawyer reasonably believes the disclosure is necessary to secure legal advice about the lawyer s compliance with the [Rules of Professional Conduct]. (A) Is not correct because disclosure of confidential client information to seek advice is limited to those who possess the capacity to advise about compliance with the Rules (must be a lawyer). (C) & (D) are not correct because although up the ladder reporting does include asking that the company seek a second opinion, it does not prevent the lawyer from using the 1.6(b)(7) exception to seek the advice for him or herself. 10

12 Disclosure of Confidential Information Rule 1.6 Dugout fires Jared based upon his threat to disclose the information to Non-Profit. Jared commences a Whistleblower lawsuit by serving and filing a complaint which details the emissions discrepancy and the company s knowledge that it is being considered for the local Non-Profit Green award based upon the incorrect emission information. 11

13 Question 3: Which Is the Best Answer? (A) Jared is permitted to do this because House Counsel in Minnesota are permitted to bring wrongful termination and whistleblower lawsuits. (B) Although the information in the complaint is confidential client information, Jared is permitted to disclose confidential information in order to establish a claim. (C) Although Jared is permitted to bring an employment claim he is prohibited by client confidentiality and the Nordling v. NSP decision from disclosing confidential client information. (D) Jared may have violated client confidentiality by filing the complaint containing the confidential client information. 12

14 The Correct Answer Is (D) Jared May Have Violated Client Confidentiality by Filing the Complaint Containing the Confidential Client Information. Nordling v. NSP (1991) did authorize House Counsel to make a wrongful discharge claim, but did not allow confidential information to be disclosed in support of the claim. However, the confidentiality exceptions in 1991 did not permit lawyers to disclose information to establish a claim. In 2005, Rule 1.6(b)(8) was amended to permit lawyers to disclose information to establish a claim. (See also Kidwell v. Sybaric, Minn. Sup. Ct. 6/24/10). However the exception is limited to only that information which is necessary to establish the claim. The complaint could have been filed under seal, or pled in a manner that complied with notice pleading requirements but did not disclose specific confidential client information. 13

15 Privacy and Waiver of Attorney-Client Privilege Jared is House Counsel for Zeon. One of the Zeon salesmen left the firm about a month ago and started his own distribution company that contracts with Zeon s primary competitor. The salesman has brought suit for unpaid commissions. Although the salesman did not have a non-compete provision in his contract, Zeon has counter-claimed that the salesman has misappropriated trade secrets, including protected client lists. 14

16 The Rest of the Facts As part of its investigation, Zeon had its technical people retrieve data off of the salesman s company issued laptop. Included were the temporary internet files of s that the salesman sent from his Web-based Yahoo account to and from a lawyer who was advising the salesman about leaving the company. Zeon s employee hand book and computer use policy both clearly state that any and all information on the company s computers and network are subject to inspection and use by the company. Jared is consulted about what to do with the files. 15

17 Question 4: Which Answer Is Correct? (A) Jared need not do anything at present. He should wait to see if the information is useful in the pending litigation. (B) Jared should review the s to determine whether they are privileged. If so, then he is required to notify the opposition only if he intends to use the s in the litigation. (C) Jared must immediately return the s to the salesman s counsel and not keep any copies. (D) Jared should promptly notify opposing counsel that he is in possession of what may be privileged s. 16

18 The Correct Answer Is (D) Jared Should Promptly Notify Opposing Counsel that He Is in Possession of the s. Courts have been using the law of inadvertent disclosure and privilege waiver to analyze privileged s discovered by employers on employee computers when the issue arises outside of discovery. ABA & MN Rule 4.4(b) provides: A lawyer who receives a document relating to the representation of the lawyer s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. The Comment states: Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived. 17

19 How Jared Handles the Matter. Jared reviews all of the s, some of which appeared to be privileged, and others which were clearly not privileged. He then makes copies and forwards them to Zeon s outside litigation counsel who seeks court permission to use the privileged s in the litigation. 18

20 Question 5: Which Answer Is Correct? (A) Jared s conduct in reviewing and copying the s after he determined some were privileged was improper. (B) Jared s conduct in reviewing and copying the s after he determined some were privileged was proper because of Zeon s computer and network use policy. (C) Whether Jared s conduct was proper depends upon which state ethics rule applies. (D) As long as opposing counsel was promptly notified, Jared s conduct is ethically proper. 19

21 The Correct Answer Is (C) Whether Jared s Conduct Was Proper Depends Upon Which State Ethics Rule Applies. State Ethics Rules differ in the obligations imposed upon lawyers for handling inadvertently disclosed privileged information. New Jersey Rule 4.4(b): A lawyer who receives a document and has reasonable cause to believe that the document was inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document, promptly notify the sender, and return the document to the sender. Stengart v. Loving Care Agency Inc., applying New Jersey Rule 4.4(b) to the above facts held that the s were privileged, that privilege had not been waived, and remanded the matter to the trial court to determine whether counsel should be disqualified and sanctioned. 20

22 Privilege and House Counsel Jared was admitted to the MN bar shortly before obtaining an Assistant House Counsel position at Zeon. Jared kept his MN license current for the next several years but after his transfer to Zeon s New York office, his license became restricted for noncompliance with MN CLE Rules and he ceased paying the annual MN license fee. Zeon is currently the defendant in large piece of litigation relating to products liability. The plaintiff knows from a former Zeon employee that Jared consulted the Zeon CEO and other managers about products liability law before the injury to the plaintiff occurred. The plaintiff has brought a motion to compel disclosure of Jared s conversation with the managers about the product. 21

23 Question 6: Which Answer Is Correct? (A) Privilege may not exist between Jared and the managers. (B) Privilege exists provided the managers fall within the control group of the company with respect to the product involved in the product liability action. (C) Privilege exists because the managers were unaware that Jared s MN license was restricted and suspended. (D) Privilege never existed because managers do not possess the authority to bind the company for the purposes of criminal or civil liability in product liability actions. 22

24 The Correct Answer Is (A) Privilege May Not Exist Between Jared and the Managers. Gucci America, Inc. v. Guess?, Inc., 2010 WL Chief House Counsel s California law license was inactive due to failure to pay bar dues. The Court held that although ordinarily clients may reasonably rely that a lawyer is licensed, it was not reasonable for Gucci as House Counsel s employer to do so. The Court ruled that House Counsel s communications with managers and other protected persons concerning a trademark dispute with Guess were not protected by the attorney-client privilege and remanded the matter to determine whether any of the communications sought were protected by the work product doctrine. 23

25 The Lightning Round: Investigation Pretexting: Angel or Devil? For the following scenarios: Answer Yes if you believe the lawyer s conduct should result in discovery sanctions and/or professional discipline. Answer No if you believe the lawyer s conduct does not warrant sanctions or discipline. 24

26 Lawyer Regulation v. Hurley Wisc. Sup Ct. (2/11/09) Hurley represented a criminal defendant charged with exhibiting harmful material to a minor and possession of child pornography. Hurley devised and supervised an undercover operation that was designed to obtain exculpatory evidence about the minor s independent interest in pornography. Hurley sent a letter on letterhead of a company telling the minor he had won a new computer, but as a condition of receiving the new computer he must trade-in his existing computer. Hurley s investigator went to the minor s house and met with the minor and his mother. The computers were swapped The minor s computer was analyzed by a forensic specialist who found child pornography on the hard drive. Question 7: (A) Yes (B) No 25

27 The Correct Answer Is No Sanctions or Discipline. Hurley s ethics charges were dismissed by the Wisconsin Supreme Court. Discipline Counsel failed to establish that Hurley violated any ethical rules. Both Discipline Counsel and the local District Attorney agreed that prosecutors have traditionally used dissemblance in order to collect evidence. Discipline Counsel could not provide any precedent drawing a distinction between prosecutors and other lawyers in that regard. 26

28 In re Gatti, 8 P.3d 966, Or. Sup. Ct. (2003) Lawyer posed as a chiropractor in a telephone call with a Medical Review company (opposing party) employee and taped the conversations. It is not illegal in Oregon for a party to a conversation to secretly record the conversation. When the ethics complaint is lodged, the lawyer defends on the basis that his ethics complaint (several years prior) against an Assistant Attorney General for using testers in a housing discrimination case was dismissed by the same state ethics board. Question 8: (A) Yes (B) No 27

29 The Correct Answer Is Yes, Gatti Was Disciplined. Gatti was publicly reprimanded for misrepresenting himself to the Medical Review Company. The Court focused upon false statements Gatti made during the conversation: That he was a Doctor (without disclosing it was a Doctor of Juris Prudence). That he had been referred to the Company by State Farm. That he intended to have the Company s employee make damaging statements about its file review practices. The U.S. Attorney and the Oregon Attorney General appeared amicus curiae and argued for the Court to adopt a prosecutorial exception. The Court declined to do so. 28

30 Mondelli v. Checker Taxi Co, Inc., 554 N.E.2d 266. (Ill. App. 1990) Defense Lawyer in a personal inquiry case sends an investigator into the Plaintiff s beauty shop. While getting a cut and perm from the Plaintiff, the investigator conversed about Plaintiff s Xmas shopping and holiday plans. Plaintiff s lawyer moved to preclude the investigator s testimony at trial on the basis that the ex parte contact with the Plaintiff who was represented by counsel violated Rule 4.2, prohibiting communication with persons represented by counsel. Question 9: (A) Yes (B) No 29

31 The Correct Answer Is Yes, Discovery Sanction Was Imposed in Part. The Appellate Court found it was an error to preclude testimony from the investigator about his observations of the plaintiff/beautician. However, the Appellate Court upheld the trial court s exclusion of the investigator s testimony about his conversations with the Plaintiff because the Plaintiff was represented by counsel. See Rule 4.2 prohibiting communications with a represented party who is known to be represented by counsel. 30

32 Midwest Motor Sports v. Arctic Cat, 347 F.3d 693 (8th Cir. 2003) The case involves litigation between Arctic Cat and a terminated dealer. During discovery, counsel for Arctic Cat hired a former FBI agent to pose as a customer and secretly record conversations with the dealership s salespersons to determine if it had really been financially damaged by the inability to sell Arctic Cats. The FBI visited the dealership and brought his wife as cover. Wearing a wire he recorded conversations with the salespersons. Midwest later brought a motion for discovery sanctions alleging the contact was dishonest and violated Rule 4.2 by contacting a represented party. Question 10: (A) Yes (B) No 31

33 The Correct Answer Is Yes, Sanctions Were Imposed. All of the evidence obtained by Arctic Cat s investigator was excluded: Posing as customers and secretly taping conversations with Plaintiff s employees violated the South Dakota Ethics Rules against deceit and ex parte communications with a represented party. Lawyers cannot escape responsibility for wrongdoing they supervise by asserting it was their agents, not themselves, who committed wrong. Failure to award monetary sanctions was not an error. 32

34 Undercover Investigation Principles Lawyers are responsible for training and supervising their agents. Statements that are literally false are apt to be found to be unethical. Contacts with represented parties through investigators may result in exclusion of evidence. State laws and lawyer disciplinary agencies can differ radically in their interpretation of what constitutes dishonesty. If your kid is offered a free computer, there is likely a catch. 33

35 Minnesota Rules of Professional Conduct Effective October 1, 2005, with amendments through July 1, 2010 RULE 1.6: CONFIDENTIALITY OF INFORMATION (a) Except when permitted under paragraph (b), a lawyer shall not knowingly reveal information relating to the representation of a client. (b) A lawyer may reveal information relating to the representation of a client if: (1) the client gives informed consent; (2) the information is not protected by the attorney-client privilege under applicable law, the client has not requested that the information be held inviolate, and the lawyer reasonably believes the disclosure would not be embarrassing or likely detrimental to the client; (3) the lawyer reasonably believes the disclosure is impliedly authorized in order to carry out the representation; (4) the lawyer reasonably believes the disclosure is necessary to prevent the commission of a 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, or to prevent the commission of a crime; (5) the lawyer reasonably believes the disclosure is necessary to rectify the consequences of a client s criminal or fraudulent act in the furtherance of which the lawyer s services were used; (6) the lawyer reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial bodily harm; (7) the lawyer reasonably believes the disclosure is necessary to secure legal advice about the lawyer s compliance with these rules; (8) the lawyer reasonably believes the disclosure is necessary to establish a claim or defense on behalf of the lawyer in an actual or potential controversy between the lawyer and the client, to establish a defense in a civil, criminal, or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond in any proceeding to allegations by the client concerning the lawyer s representation of the client; (9) the lawyer reasonably believes the disclosure is necessary to comply with other law or a court order; or (10) the lawyer reasonably believes the disclosure is necessary to inform the Office of Lawyers Professional Responsibility of knowledge of another lawyer s violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer s honesty, trustworthiness, or fitness as a lawyer in other respects. See Rule 8.3.

36 Comment [1] This rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer s representation of the client. See Rule 1.18 for the lawyer s duties with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer s duty not to reveal information relating to the lawyer s prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for the lawyer s duties with respect to the use of such information to the disadvantage of clients and former clients. [2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client s informed consent, the lawyer must not reveal information relating to the representation. See Rule 1.0(f) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld. [3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work-product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply 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, for example, applies not only 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 the Rules of Professional Conduct or other law. See also Scope. [4] Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. Authorized Disclosure [5] Except to the extent that the client s instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. 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 [6] Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(6) recognizes the overriding 2

37 value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer s disclosure is necessary to eliminate the threat or reduce the number of victims. [7] A lawyer s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer s personal responsibility to comply with these rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(7) permits such disclosure because of the importance of a lawyer s compliance with the Rules of Professional Conduct. [8] 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. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer s right to respond arises when an assertion of such complicity has been made. Paragraph (b)(8) 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 also applies, of course, where a proceeding has been commenced. [9] A lawyer entitled to a fee is permitted by paragraph (b)(8) 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. [10] Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this rule and requires disclosure, paragraph (b)(9) permits the lawyer to make such disclosures as are necessary to comply with the law. [11] A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, 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)(9) permits the lawyer to comply with the court s order. [12] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client s interest should be no greater than the lawyer 3

38 reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that 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. [13] Paragraph (b) permits but does not require the disclosure of information relating to a client s representation to accomplish the purposes specified in paragraphs (b)(1) through (b)(10). In exercising the discretion conferred by this rule, the lawyer may consider 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. A lawyer s decision not to disclose as permitted by paragraph (b) does not violate this rule. Disclosure may be required, however, by other rules. Some rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this rule. See Rule 3.3(c). Withdrawal [14] 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 Rule 1.16(a)(1). After withdrawal the lawyer is required to refrain from making disclosure of the client s confidences, except as otherwise permitted in Rule 1.6. Neither this rule nor Rule 1.8(b) nor Rule 1.16(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 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 Rule 1.13(b). Acting Competently to Preserve Confidentiality [15] A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer s supervision. See Rules 1.1, 5.1 and 5.3. [16] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this rule. Former Client [17] The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client. 4