The New ABA Opinion on the “Generally Known” Exception to Former-Client Confidentiality and Disqualification: An Attempt to Put a Pin in a Moving Target?

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HIGHLIGHTS:

  • In Formal Opinion 479, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility recently sought to define the important term of “generally known” information.
  • Information is generally known if it is widely recognized by members of the public in the relevant geographic area, or if it is widely recognized in the former client’s industry, profession or trade.
  • A lawyer may use information that is generally known to a former client’s disadvantage without the former client’s informed consent.

The American Bar Association (ABA) Model Rule 1.9(c) contains an exception for information that is “generally known” to the general rule that absent consent, a lawyer cannot represent a current client adversely to a former client if the lawyer learned information from the former client that is protected by Model Rule 1.6(a). The ABA Standing Committee on Ethics and Professional Responsibility this month issued Formal Opinion 479, which sought to define when something is “generally known.” Like many attempted definitions, it seems unlikely that this opinion will settle all, or even most, arguments about this important term.  

Model Rule 1.6(a) creates a duty of confidentiality to current clients, and Model Rule 1.9 extends this duty to former clients. More specifically for present purpose, Model Rule 1.9(c) provides that:

A lawyer 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:

  1. use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
  2. reveal information relating to the representation except as these Rules would permit or require with respect to a client

(Emphasis supplied.) In other words, Model Rule 1.9(c)(1) provides that a lawyer who has received information that has become “generally known” is not, without direction from the former client, prohibited from making “use” of that information against the lawyer’s former client.

The citations in the opinion reflect that different courts and commentators have taken different positions on what is or is not “generally known.” Nonetheless, the opinion provides what it offers as a “workable definition” of the phrase:

[T]he Committee’s view is that information is generally known within the meaning of Model Rule 1.9(c)(1) 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. Information may become widely recognized and thus generally known as a result of publicity through traditional media sources, such as newspapers, magazines, radio, or television; through publication on internet web sites; or through social media. With respect to category (b), information should be treated as generally known if it is announced, discussed, or identified in what reasonable members of the industry, profession, or trade would consider a leading print or online publication or other resource in the particular field. Information may be widely recognized within a former client’s industry, profession, or trade without being widely recognized by the public. For example, if a former client is in the insurance industry, information about the former client that is widely recognized by others in the insurance industry should be considered generally known within the meaning of Model Rule 1.9(c)(1) even if the public at large is unaware of the information.

The opinion then goes on to explain the following:

Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client’s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes. Information that is publicly available is not necessarily generally known. Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).

(Footnotes omitted.) Even if the meaning of phrases such as “widely recognized” and “leading print or online publication or other resource” was clear, it is hard to know what to make of “standing alone” in the context of the statement that “the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known.” (Emphasis supplied.) And the statement in the last sentence that information that “requires specialized knowledge or expertise to locate” is “[c]ertainly” not generally known begs the question whether any and all information that is publicly available and that does not require specialized knowledge or expertise to locate is entitled to protection. It therefore seems more likely that the categories established in the first paragraph quoted above will be seen as describing what is sure to constitute information that is generally known than they are to set an outer limit to what can be considered generally known.

Conclusion

A lawyer may use information that is generally known to a former client’s disadvantage without the former client’s informed consent. Information is generally known within the meaning of Model Rule 1.9(c)(1) if it is widely recognized by members of the public in the relevant geographic area, or if it is widely recognized in the former client’s industry, profession or trade. For information to be generally known, it must previously have been revealed by some source other than the lawyer or the lawyer’s agents. Information that is publicly available is not necessarily generally known.

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