SCHOOL LAW ETHICS FOR EDUCATORS AND LAWYERS

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1 SCHOOL LAW ETHICS FOR EDUCATORS AND LAWYERS Prepared By: Forrest Jack Lance General Counsel Rockdale County Public Schools August 28, 2003

2 SCHOOL LAW ETHICS FOR EDUCATORS AND LAWYERS TABLE OF CONTENTS I. GOVERNMENT ENTITY Page A. Client Identity and Violation of Law 1. Rule Comments 2 B. School Attorney as Advisor 1. Rule Comments 3 C. Communicating With Represented Parties: Current Employees 1. Rule Comments 4 3. Advisory Opinions Cases: Current Employees.. 6 D. Communicating With Represented Parties: Former Employees 1. Advisory Opinions Cases: Former Employees. 12 E. Communicating With Unrepresented Person: Pro Se Party 1. Rule Comments.. 14 F. Ethical Rules Apply to State and Federal Lawyers 1. Rule II. RULE OF CONFIDENTIALITY vs. ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT A. Rule of Confidentiality 1. Rule Comments Case: Attorney-Client Relationship & Confidentiality.. 16 i

3 B. Attorney-Client Privilege and Work Product Page 1. Cases: Attorney-Client Privilege and Work Product.. 17 III. CONFLICT OF INTEREST A. Conflict of Interest: Self Interest 1. Rule Comments Rule Comments Cases: Self Interest.. 25 B. Conflict of Interest: Current Client 1. Comments Rule Comments Advisory Opinion Cases: Current Client C. Conflict of Interest: Former Client 1. Rule Advisory Opinion Cases: Former Client IV. FAIRNESS TO OPPOSING PARTY AND COUNSEL A. Obstruction of Justice 1. Rule Comments Cases: Obstruction of Justice.. 35 V. REPORTING PROFFESSIONAL MISCONDUCT A. Reporting Requirements 1. Rule ii

4 APPENDIX Page A. CODE OF ETHICS FOR MEMBERS OF BOARDS OF EDUCATION (LAW, LOCAL POLICY AND LOCAL ACT) 40 B. CODE OF ETHICS FOR GOVERNMENT SERVICE 43 C. CODE OF ETHICS FOR EDUCATORS/REPORTING REQUIREMENTS 45 D. GEORGIA RULES OF PROFESSIONAL CONDUCT FOR LAWYERS 50 iii

5 PREFACE I would like to publicly thank the members of the Rockdale County Board of Education and Superintendent for: 1. Recognizing the numerous benefits of preventive law to the district and having the vision to chart a new path by creating the Office of General Counsel; 2. Always considering if they have a legal right to do something, but also considering if it is the right thing to do; and 3. Generously allowing me to work with attorneys in school law from Georgia and across the nation. In appreciation of their numerous contributions to the Rockdale County School District, I dedicate Ethics for Georgia School Board Attorneys to: This the 28th day of August, Tony Wilson, Chairman Darlene Hotchkiss, Vice Chair Travis Collins Jeff Dugan Ray Ramos Jean Yontz Tom Serra Ruel Parker, Superintendent Prepared By: Forrest Jack Lance General Counsel Rockdale County Public Schools iv

6 SCHOOL LAW ETHICS FOR EDUCATORS AND LAWYERS I. GOVERNMENT ENTITY A. CLIENT IDENTITY AND VIOLATION OF LAW 1. RULE 1.13 ORGANIZATION OR GOVERNMENT ENTITY AS CLIENT (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others: (1) asking reconsideration of the matter; (2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and (3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law. 1

7 2. Comments (c) If, despite the lawyer's efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer may resign in accordance with Rule (f) "Organization" as used herein includes governmental entities. The maximum penalty for a violation of this Rule is a public reprimand. [1] An organizational client is a legal entity, but it cannot act except through its officers, directors, employees, shareholders and other constituents. Officers, directors, employees and shareholders are the constituents of the corporate organizational client. [3] When constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning policy and operations, including ones entailing serious risk, are not as such in the lawyer's province. However, different considerations arise when the lawyer knows that the organization may be substantially injured by action of a constituent that is in violation of law. In such a circumstance, it may be reasonably necessary for the lawyer to ask the constituent to reconsider the matter. If that fails, or if the matter is of sufficient seriousness and importance to the organization, it may be reasonably necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the organization. Clear justification should exist for seeking review over the head of the constituent normally responsible for it. The stated policy of the organization may define circumstances and prescribe channels for such review, and a lawyer should encourage the formulation of such a policy. Even in the absence of organization policy, however, the lawyer may have an obligation to refer a matter to higher authority, depending on the seriousness of the matter and whether the constituent in question has apparent motives to act at variance with the organization's interest. Review by the chief executive officer or by the board of directors may be required when the matter is of importance commensurate with their authority. At some point it may be useful or essential to obtain an independent legal opinion. [6] The duty defined in this Rule applies to governmental entities. However, when the client is a governmental entity, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful official act is 2

8 prevented or rectified, for public business is involved. In addition, duties of lawyers employed by the government or lawyers in military service may be defined by statutes and regulation. Therefore, defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context. Although in some circumstances the client may be a specific agency, it is generally the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the government as a whole may be the client for purpose of this Rule. Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. This Rule does not limit that authority. See note on Scope. B. SCHOOL ATTORNEY AS ADVISOR 1. RULE 2.1 ADVISOR In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. The maximum penalty for a violation of this Rule is disbarment. 2. Comments [2] In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation. Advice couched in narrowly legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. [3] A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations. [5] In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is 3

9 likely to result in substantial adverse legal consequences to the client, duty to the client under Rule 1.4: Communication may require that the lawyer act if the client's course of action is related to the representation. A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest. C. COMMUNICATING WITH REPRESENTED PARTIES: CURRENT EMPLOYEES 1. RULE 4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL 2. Comments (a) A lawyer who is representing a client in a matter shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by constitutional law or statute. (b) Attorneys for the State and Federal Government shall be subject to this Rule in the same manner as other attorneys in this State. The maximum penalty for a violation of this Rule is disbarment. [1] This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government entity and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Also, parties to a matter may communicate directly with each other and a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. Communications authorized by law include, for example, the right of a party to a controversy with a government entity to speak with government officials about the matter. [3] This Rule applies to communications with any person, whether or not a party to a formal adjudicative proceeding, contract or negotiation, who is represented by counsel concerning the matter to which the communication relates. 4

10 [4A] In the case of an organization, this Rule prohibits communications by a lawyer for another person or entity concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f): Fairness to Opposing Party and Counsel. [4B] In administering this Rule it should be anticipated that in many instances, prior to the beginning of the interview, the interviewing lawyer will not possess sufficient information to determine whether or not the relationship of the interviewee to the entity is sufficiently close to place the person in the "represented" category. In those situations the good faith of the lawyer in undertaking the interview should be considered. Evidence of good faith includes an immediate and candid statement of the interest of the person on whose behalf the interview is being taken, a full explanation of why that person's position is adverse to the interests of the entity with which the interviewee is associated, the exploration of the relationship issue at the outset of the interview and the cessation of the interview immediately upon determination that the interview is improper. [5] The prohibition on communications with a represented person only applies, however, in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. See Terminology. Such an inference may arise in circumstances where there is substantial reason to believe that the person with whom communication is sought is represented in the matter to be discussed. Thus, a lawyer cannot evade the requirement of obtaining the consent of counsel by ignoring the obvious. [8] This Rule is not intended to affect communications between parties to an action entered into independent of and not at the request or direction of counsel. 3. Advisory Opinions a. Formal Advisory Opinion No (87-R2), July 12, Ethical Propriety of a Lawyer Interviewing the Officers and Employees of an Organization When That Organization is The Opposing Party in Litigation Without Consent of Organization. 5

11 An attorney may not ethically interview an employee of a corporation which is an opposing party in pending litigation without the consent of the corporation or the corporation's counsel where the employee is either: 1) an officer or director or other employee with authority to bind the corporation; or 2) an employee whose acts or omissions may be imputed to the corporation in relation to the subject matter of the case. b. ABA COMM. ON ETHICS AND PROFESSIONAL RESPONSIBILITY, FORMAL OP Communication with Government Agency Represented by Counsel Model Rule 4.2 generally protects represented government entities from unconsented contacts by opposing counsel, with an important exception based on the constitutional right to petition and the derivative public policy of ensuring a citizen's right of access to government decision makers. Thus Rule 4.2 permits a lawyer representing a private party in a controversy with the government to communicate about the matter with government officials who have authority to take or to recommend action in the matter, provided that the sole purpose of the lawyer's communication is to address a policy issue, including settling the controversy. In such a situation the lawyer must give government counsel reasonable advance notice of his intent to communicate with such officials, to afford an opportunity for consultation between government counsel and the officials on the advisability of their entertaining the communication. In situations where the right to petition has no apparent applicability, either because of the position and authority of the official sought to be contacted or because of the purpose of the proposed communication, Rule 4.2 prohibits communication without prior consent of government counsel. 4. Cases: Current Employees In a claim involving Americans With Disabilities Act and the Fair Labor Standard Act against a school district, the plaintiff s attorney engaged in ex parte communications with an operation supervisor of the school district and the immediate supervisor of the plaintiff. The school district moved for a protective order prohibiting plaintiff s counsel from contacting any of its present or former supervisory personnel, to exclude evidence obtained from the two employees and to strike the two employees as witnesses. The District Court 6

12 found a violation of Rule 4.2 and upon its own motion disqualified the plaintiff s attorney from proceeding in the case and prohibited any use of the evidence obtained by the two employees outside their deposition. Weeks v. Independent School District, No. I-89, 230 F. 3 rd 1201 (2000), cert. denied, 532 U.S (2001). Plaintiff school employees brought an action against the executive assistant to the chancellor of the New York City School District challenging the adequacy of a bilingual instruction program. The chancellor sent a message specifically prohibiting all school personnel from providing opinion evidence to be used in the case and threatening a violation of the directive would violate Section 1106 of the City Charter; thus, making it an offense punishable as a misdemeanor. The plaintiff employees sought to enjoin the continuation or the execution of the threats and the message. The Court issued a preliminary injunction and found that the Charter and the directive was unconstitutional, both on its face and as it was applied in the case. The District Court found that the act of the defendant was a gross invasion of first amendment rights, to say nothing of rights to gather and present relevant and competent evidence to this court. Rodriguez v. Percell, 391 F. Supp. 38 (1975) Page 41. In a case where plaintiffs were seeking the full implementation of a Medicaid program by defendant state employees, the plaintiffs requested the Court to enjoin the defendants from requiring the presence of defense counsel at interviews between plaintiffs attorneys and any potential witnesses who were also employees of defendant. State officials had issued a memorandum 7

13 instructing employees not to meet with state residents counsel without approval and threatened disciplinary action. The Court found that the memorandum infringed the employees first amendment free speech rights and that the issue of government privilege would only arise at the formal discovery level. The Court ordered that state officials issue a new memorandum informing employees that they could agree to be interviewed by state residents counsel and would not be subject to disciplinary action if they did so, that they were free to refuse to meet with state residents counsel, and that they could have state official attorneys present at any interview. However, the memorandum made clear that all such decisions were the employees and that the state officials took no position on the matter. A copy of the order was attached to the opinion. Vega, et al. v. Bloomsburgh, et al., 427 F. Supp. 593 (1977). In a claim against the Department of Children Services, the defendant director of the department moved for an order prohibiting plaintiff s attorney from interviewing case workers in a class action suit against the Department of Children Services. The District Court denied the motion and allowed the plaintiff s attorneys to interview workers, but they could not use the statements as admissions of party opponents against the department. B.H., et al v. Johnson, 128 F.R.D. 659 (1989). In a racial discrimination case against the City of Milwaukee, its police and fire department, the U.S. moved for preliminary injunction against the defendants from prohibiting employees from cooperating with the U.S. Defendants would not allow their employees to be interviewed without 8

14 permission of superiors. The Court did not rule that the policy or directive was unconstitutional or that the employees had a constitutional right. However, the Court determined that the action was in violation of Section 704(a) of Title VII of the Civil Rights Act of 1964, which prohibits any adverse action for someone who made a charge, testified, assisted or participated in any manner in an investigation. The Court required the defendants to issue a statement that although no employee is required to talk to the Department of Justice, all such employees are free to do so. If in fact they do talk with representatives, they do not need to have permission of their superior, nor did they have to report to their superior the fact that they talked with representatives of the Department of Justice. The Court enjoined the defendants permanently from investigating any employee because he talked with a representative or using the fact that he cooperated as a consideration in denying or granting any promotion, transfer or assignment or using the fact that he cooperated in any evaluation or making any notation in the personnel file of the employee s cooperation. U.S. v. City of Milwaukee, 390 F. Supp (1975). A lawyer who advised his bank client to contact all its customers and encourage them to opt out of a class action suit violated both the court order as well as Rule 4.2. The attorney was then fined $50,000. Kleiner v. First National Bank, et al., 751 F.2d 1193 (11 th Cir., 1995). In Terra International, Inc. v. Mississippi Chemical Corporation, 913 F. Supp (N.D. of Iowa, 1996) the District Court addressed extensively and thoughtfully the issue of ex parte communications with current and former 9

15 employees. With regard to ex parte communications with current employees, the District Court ruled that ex parte contacts should not be permitted with managerial level employees. Page The District Court also distinguished between current employees who merely observed others committing wrongful acts from employees whose wrongful acts could impute liability directly to their employer. The District Court referred to the reporting employees as fact witnesses who may be interviewed by the opposing attorney. The acting employees could not be interviewed by opposing counsel. With regard to former employees, the District Court held that the ethical canons must be read as permitting ex parte communications with former employees, with one limited exception. Former employees who are in fact represented by the former employer s counsel, or any counsel, are plainly off limits under the language of the Rules. Page Further, the District Court held an attorney communicating with a former employee of the opposing party may not inquire into privilege attorney-client communications. Page The District Court considered the following restrictions, but decided not to impose any of the restrictions: in Carter-Herman, even though the court recognized that the current employees who could be contacted ex parte were all police officers, and therefore "undoubtedly more sophisticated about the legal process than most laypersons," they should be protected by requiring counsel contacting them to advise them of (1) counsel's representative capacity; (2) counsel's reasons for seeking the interview; (3) the interviewee's right to refuse to be interviewed; and (4) the interviewee's right to have his or her own counsel present. Other courts impose these and further guidelines or limitations for ex parte contacts with current and former employees. (approving a "script" for initial contacts to determine who 10

16 might be within the protected "control group"); (requiring counsel for U.S. to advise persons contacted that they might be subject to prosecution under the Clean Water Act); (adding to the four disclosures required in Carter-Herman, a fifth requirement that the contacting representative "not, under any circumstances, seek to obtain attorney-client or work product information from the employee"). Citations omitted. Page D. COMMUNICATING WITH REPRESENTED PARTIES: FORMER EMPLOYEES 1. Advisory Opinion Formal Advisory Opinion No (Proposed Formal Advisory Opinion No. 91-R3), September 9, Question Presented: May a lawyer properly contact and interview former employees of an organization represented by counsel to obtain information relevant to litigation against the organization? Summary Answer: A lawyer may properly contact and interview former employees of an organization that is represented by counsel to obtain nonprivileged information relevant to litigation against the organization provided that: (1) the lawyer makes full disclosure as to the identity of his/her client; and (2) the former employee consents. That, however, does not conclude the matter. A former employee may not wish to give information against the former employer, and since he or she is entitled not to do so, it would be unethical to use deceit and false pretenses to deny the former employee his or her right. Consequently, the former employee is entitled to know the identity of the lawyer's client, the reason for the contact, the purpose of the interview and any other information necessary under the circumstances to make the interview not misleading. A refusal of the former employee to grant the interview means only that the lawyer must resort to the normal discovery processes and witness procedures. It follows, then, that while a lawyer may contact a former employee of an organization for the purposes of an interview, before proceeding with the interview, that lawyer must make full disclosure and obtain the consent of the former employee. While this opinion has not dealt with the situation in which the organization is not represented by a lawyer, it is well to note two things. First, there is no rule of 11

17 ethics prohibiting the contact in such a situation; second, even when there is no lawyer representing the organization, the former employee still has a right to know the reason for the contact and the purpose of the interview. Therefore, it would be unethical for a lawyer to attempt to obtain information without full disclosure. In this context as in others, a lawyer's attempt to obtain information under false pretenses or by the use of deceit is unethical. (Emphasis added). 2. Cases: Former Employees In an antitrust claim against four major airlines, the defendant airlines moved to prohibit attorneys for plaintiffs from contacting former employees on an ex parte basis. The District Court declined to require the plaintiffs to notify defendants of their intention to interview former employees and to allow counsel for defendants to be present during the interview. However, the District Court did require that the plaintiffs comply with Model Rule 4.3 as it relates to lawyers dealing with unrepresented persons. The District Court specifically held that: Prior to any ex parte contact with former employees of the defendant airlines, plaintiffs must deliver to the former employee a letter informing her of the nature of the lawyer s role in the matter giving occasion for the contact, including the identity of the lawyer s client and the fact that the witness s former employer is an adverse party. Counsel must also inform the former employee that she has no obligation to talk with plaintiffs counsel. The Court will not require, as requested by defendants, that the letter include the name, address, and telephone number of the relevant corporate defendant s counsel. In Re: Domestic Air Transportation AntiTrust Litigation, 141 F.R.D. 556, Page 562 (1992). Sanifill of Georgia, Inc. v. Roberts, 232 Ga. App. 510 (1998) cited with approval In Re: Domestic Air Transportation, supra. The driver of defendant Sanifill was involved in a motor vehicle accident. A lawsuit followed. A garbage truck driver was no longer employed by defendant. Plaintiff s attorney contacted and extensively interviewed the former driver. Defendant moved the Court to 12

18 obtain a protective order. It was denied. The Court allowed the ex parte communication with the former employee. However, the Court warned counsel not to inquire into the attorney-client privilege that might have existed while employed. The Court relied upon the Supreme Court of Georgia Formal Advisory Opinion Thus, under Georgia law, an attorney must notify the former employee of the attorney s client s name and that the former employer has no obligation to talk. If these conditions are met, then the attorney has the right to obtain non-privilege information relevant to the litigation against the organization. Compare RentClub, Inc. v. Transamerica Rental Finance Corporation, 811 F. Supp. 651 (1992). The District Court disqualified a law firm that retained as a trial consultant the former manager of finances, or CFO as contended by the defendant, who possessed privileged communications and who participated in privileged communications involving similar lawsuits while employed by defendant. Defendant moved to disqualify plaintiff s counsel. The District Court held that plaintiff s counsel had violated Rule 4.2 which barred counsel s ex parte communication of a former employee because he was deemed an opposing party under the Rule. The plaintiff s attorney had hired the former employee as a trial consultant by paying him an advance of $5,000 against a rate of $50 per hour. Five days after the retainer, the former employee signed an affidavit as a fact witness against his former employer. The District Court found that the former employee had obtained possession of certain confidential documents and information which he disseminated without the consent of his former employer. 13

19 Coupled with the large payment and disclosure of confidential documents, the District Court determined that he was a party under the Ethical Rules and disqualified plaintiff s attorney. The 11 th Circuit Court of Appeals affirmed the District Court, but focused more on the payment to a fact witness than on whether the witness was a party. RentClub, Inc. v. Transamerica Rental Finance Corporation, 43 F. 3 rd 1439 (1995). E. COMMUNICATING WITH UNREPRESENTED PERSON: PRO SE PARTY 1. RULE 4.3 DEALING WITH UNREPRESENTED PERSON In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not: (a) state or imply that the lawyer is disinterested; when the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding; (b) give advice other than the advice to secure counsel; and (c) initiate any contact with a potentially adverse party in a matter concerning personal injury or wrongful death or otherwise related to an accident or disaster involving the person to whom the contact is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the contact. The maximum penalty for a violation of this Rule is disbarment. 2. Comment [2] In some circumstances a lawyer must deal with a person who is unrepresented. In such an instance, a lawyer should not undertake to give advice to that person, other than the advice to obtain counsel. F. ETHICAL RULES APPLY TO STATE AND FEDERAL LAWYERS 1. RULE 9.5 LAWYER AS A PUBLIC OFFICIAL 14

20 (a) A lawyer who is a public official and represents the State, a municipal corporation in the State, the United States government, their agencies or officials, is bound by the provisions of these Rules. II. RULE OF CONFIDENTIALITY VS. ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT A. RULE OF CONFIDENTIALITY 1. RULE 1.6 CONFIDENTIALITY OF INFORMATION (a) A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, or are required by these rules or other law, or by order of the Court. (e) The duty of confidentiality shall continue after the client-lawyer relationship has terminated. The maximum penalty for a violation of this Rule is disbarment. 2. Comments [5] 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. Rule 1.6: Confidentiality of Information 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 the Rules of Professional Conduct or other law. See also Scope. The requirement of maintaining confidentiality of information relating to representation applies to government lawyers who may disagree with the client's policy goals.. (Emphasis added). Comment [2] of Rule

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