A recent decision from the Massachusetts Supreme Judicial Court (SJC) addresses the circumstances under which an attorney may be subject to discipline for disclosing confidential client information. In the Matter of Michael J. Kelley, SJC-13145 (Jan. 7, 2022 – Mar. 16, 2022), the SJC held that in bar disciplinary proceedings before the Board of Bar Overseers (Board), Bar Counsel must prove that the information was not “generally known” to establish that an attorney disclosed client information improperly.
A. Case Background
In Kelley, the respondent attorney represented an individual seeking assistance in appealing the denial of disability benefits. The attorney filed an appeal on the client’s behalf in federal district court and the court issued an order requiring the client to pay a filing fee or file a motion to waive the fee. The attorney attempted to contact the client multiple times to complete the paperwork necessary to seek leave to waive the fee, but the client never responded and the court dismissed the action without prejudice. About two years later, the client’s sister, also an attorney, learned that the case had been dismissed. She filed a motion to vacate the dismissal. In her motion, she asserted that she had attempted to contact the attorney about her brother’s case but never received a response. The attorney then filed a “response” to the motion to vacate on behalf of himself and not in support of any party. In an affidavit attached to the response, he stated, among other things, “[o]n February 12, 2016, [the client] was arrested by the… [p]olice for allegedly shoplifting and possession of Class A drugs,” and “[o]n February 20, 2017, [the client] was arrested by the… [p]olice for allegedly assaulting and battering a person [sixty] or older or disabled.”
Bar Counsel filed a petition for discipline against the attorney, alleging that he had impermissibly disclosed confidential information by including the client’s arrest history in the affidavit. The attorney argued in response that the information about the client’s arrests was published in the client’s hometown newspaper, which the attorney discovered by Googling the client’s name. Following an evidentiary hearing, a hearing committee of the Board concluded that the attorney had disclosed confidential information in violation of the Rules of Professional Conduct. The hearing committee cited to Comment 3A to Rule 1.6 (discussed below) in holding that the attorney failed to produce any evidence that the client’s arrests were “generally publicized or known within the local community, or that [it was] a matter of widespread publicity, so as to except the information from the definition of ‘confidential information.’”
The Board rejected the hearing committee’s recommendation, finding that Bar Counsel had the burden to prove that the disclosed information was confidential, and Bar Counsel had not satisfied this burden. After a hearing, a single justice of the Supreme Judicial Court reserved and reported the case to the full Court.
B. Did the Attorney Disclose Confidential Client Information?
1. Rules 1.6 (a) and 1.9 (c) of the Professional Rules of Conduct
Pursuant to Rule 1.6 (a), “[a] lawyer shall not reveal confidential information related to the representation of a client” absent exceptions that were not relevant to this case. Similarly, pursuant to Rule 1.9 (c), “[a] lawyer who has formerly represented a client in a matter… shall not thereafter: (1) use confidential information related to the representation to the disadvantage of the former client, or for the lawyer’s advantage, or the advantage of a third person,… or (2) reveal confidential information relating to the representation…”
Comment 3A to Rule 1.6 explains that whether information is “confidential” turns, in part, on whether the information is “generally known.” According to Comment 3A, “‘[c]onfidential information’ does not ordinarily include… information that is generally known in the local community or trade, field or profession to which the information relates.” Comment 3A states further, as follows, that whether information is “generally known” depends primarily on how widespread the information has become.
Information that is ‘generally known in the local community or in the trade, field or profession to which the information relates’ includes information that is widely known. Information about a client contained in a public record that has received widespread publicity would fall within this category. On the other hand, a client’s disclosure of conviction of a crime in a different state a long time ago or disclosure of a secret marriage would be protected even if a matter of public record because such information was not ‘generally known in the local community.’ As another example, a client’s disclosure of the fact of infidelity to a spouse is protected information, although it normally would not be after the client publicly discloses such information on television and in newspaper interviews.
As the Court noted, in deciding whether information is confidential, the question is not whether the information is known, but whether it is knowable. That information is publicly available is not dispositive; rather, the focus is on how many people in the relevant community learned of the information.
2. Bar Counsel has the burden to show that the disclosed information was not “generally known” to be a violation of Rule 1.6 (a) or 1.9 (c).
In considering whether Bar Counsel or the respondent attorney had the burden of proof as to whether disclosed information was generally known, the Court cited to § 3.28 of the Rules of the Board of Bar Overseers. Section 3.28 states that Bar Counsel has the burden of proof beyond a preponderance of the evidence in all disciplinary proceedings. The Court then dispensed with the argument that the information being generally known is an affirmative defense, finding instead that whether information is generally known is intertwined with the question of confidentiality, which is an essential element of the offense. As a result, because the burden is on Bar Counsel to prove every element of an offense, the Court concluded that Bar Counsel had the burden of proving that the information concerning the client’s arrest record was not generally known and therefore was confidential for purposes of a Rule 1.6 (a) or 1.9 (c) violation.
Because there was no evidence at the hearing that the disclosed information was not already generally known in the community, the Court held that Bar Counsel did not satisfy its burden of proof. As a result, the Court affirmed the decision of the Board not to sanction the attorney for a violation of Rules 1.6 (a) or 1.9 (c). The attorney was not totally in the clear, however, as the Court affirmed the sanction of a public reprimand for offenses not related to the disclosure of confidential information.
Attorneys should always exercise caution in disclosing sensitive information about a client.
The Court’s decision highlights the general rule, as articulated in Comment 3A of Rule 1.6, that even information that is a matter of public record can be considered confidential if it is not “generally known.” Anytime an attorney discloses information about a client that could be embarrassing, the attorney should have a clear basis, based upon known facts, that the information is generally known in the local community or in the trade, field or profession to which it relates. As a result of the Court’s ruling in Kelley, it is likely that Bar Counsel will focus more on the source of confidential information, in addition to the information itself, in bringing disciplinary charges under Rules 1.6 and 1.9.
Read the decision here: https://casetext.com/case/in-re-kelley-8132031
Brendan P. Kelley is a Litigation Attorney at Conn Kavanaugh Rosenthal Peisch & Ford, LLP in Boston, MA. He can be reached at BKelley@connkavanaugh.comShare with your network: