Rule 4-1.6 — Confidentiality of Information

Comment (verbatim from The Florida Bar)

The lawyer is part of a judicial system charged with upholding
the law. One of the lawyer’s functions is to advise clients so that
they avoid any violation of the law in the proper exercise of their
rights.

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 4-1.18 for the lawyer’s duties
with respect to information provided to the lawyer by a prospective
client, rule 4-1.9(c) for the lawyer’s duty not to reveal information
relating to the lawyer’s prior representation of a former client, and
rules 4-1.8(b) and 4-1.9(b) for the lawyer’s duties with respect to the
use of confidential information to the disadvantage of clients and
former clients.
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
terminology 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 on experience, lawyers know
that almost all clients follow the advice given, and the law is upheld.
The principle of confidentiality is given effect in 2 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. The
confidentiality rule 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
confidential information except as authorized or required by the
Rules Regulating The Florida Bar or by law. However, none of the

foregoing limits the requirement of disclosure in subdivision (b).
This disclosure is required to prevent a lawyer from becoming an
unwitting accomplice in the fraudulent acts of a client. See also
Scope.
The requirement of maintaining confidentiality of information
relating to representation applies to government lawyers who may
disagree with the policy goals that their representation is designed
to advance.
Authorized disclosure
A lawyer is impliedly authorized to make disclosures about a
client when appropriate in carrying out the representation, except
to the extent that the client’s instructions or special circumstances
limit that authority. In litigation, for example, a lawyer may
disclose information by admitting a fact that cannot properly be
disputed or in negotiation by making a disclosure that facilitates a
satisfactory conclusion.
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
The confidentiality rule is subject to limited exceptions. In
becoming privy to information about a client, a lawyer may foresee
that the client intends serious harm to another person. However, to
the extent a lawyer is required or permitted to disclose a client’s
purposes, the client will be inhibited from revealing facts that would
enable the lawyer to counsel against a wrongful course of action.
While the public may be protected if full and open communication
by the client is encouraged, several situations must be
distinguished.
First, the lawyer may not counsel or assist a client in conduct
that is criminal or fraudulent. See rule 4-1.2(d). Similarly, a lawyer
has a duty under rule 4-3.3(a)(4) not to use false evidence. This
duty is essentially a special instance of the duty prescribed in rule

4-1.2(d) to avoid assisting a client in criminal or fraudulent
conduct.
Second, the lawyer may have been innocently involved in past
conduct by the client that was criminal or fraudulent. In this
situation the lawyer has not violated rule 4-1.2(d), because to
“counsel or assist” criminal or fraudulent conduct requires knowing
that the conduct is of that character.
Third, the lawyer may learn that a client intends prospective
conduct that is criminal. As stated in subdivision (b)(1), the lawyer
must reveal information in order to prevent these consequences. It
is admittedly difficult for a lawyer to “know” when the criminal
intent will actually be carried out, for the client may have a change
of mind.
Subdivision (b)(2) contemplates past acts on the part of a
client that may result in present or future consequences that may
be avoided by disclosure of otherwise confidential communications.
Rule 4-1.6(b)(2) would now require the lawyer to disclose
information reasonably necessary to prevent the future death or
substantial bodily harm to another, even though the act of the
client has been completed.
The lawyer’s exercise of discretion requires consideration of
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. Where practical the lawyer
should seek to persuade the client to take suitable action. In any
case, a disclosure adverse to the client’s interest should be no
greater than the lawyer reasonably believes necessary to the
purpose.
Withdrawal
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 4-1.16(a)(1).

After withdrawal the lawyer is required to refrain from making
disclosure of the client’s confidences, except as otherwise provided
in rule 4-1.6. Neither this rule nor rule 4-1.8(b) nor rule 4-1.16(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 the rule, the lawyer may make inquiry within the organization
as indicated in rule 4-1.13(b).
Dispute concerning lawyer’s conduct
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 this advice will be impliedly
authorized for the lawyer to carry out the representation. Even
when the disclosure is not impliedly authorized, subdivision (c)(5)
permits this disclosure because of the importance of a lawyer’s
compliance with the Rules of Professional Conduct.
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. The lawyer’s right to
respond arises when an assertion of complicity has been made.
Subdivision (c) does not require the lawyer to await the
commencement of an action or proceeding that charges complicity,
so that the defense may be established by responding directly to a
third party who has made the assertion. The right to defend, of
course, applies where a proceeding has been commenced. Where
practicable and not prejudicial to the lawyer’s ability to establish
the defense, the lawyer should advise the client of the third party’s
assertion and request that the client respond appropriately. In any
event, disclosure should be no greater than the lawyer reasonably

believes is necessary to vindicate innocence, 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.
If the lawyer is charged with wrongdoing in which the client’s
conduct is implicated, the rule of confidentiality should not prevent
the lawyer from defending against the charge. A charge can arise in
a civil, criminal, or professional disciplinary 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. A lawyer entitled to a fee is permitted by subdivision (c) 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. As
stated above, the lawyer must make every effort practicable to avoid
unnecessary disclosure of information relating to a representation,
to limit disclosure to those having the need to know it, and to
obtain protective orders or make other arrangements minimizing
the risk of disclosure.
Subdivision (c)(7) allows a lawyer to respond to specific
allegations published via the internet by a former client (e.g. a
negative online review) that the lawyer has engaged in criminal
conduct punishable by law. However, under subdivision (f), even
when the lawyer is operating within the scope of the (c)(7) exception,
disclosure must be no greater than the lawyer reasonably believes
necessary to refute the specific allegations.
Disclosures otherwise required or authorized
The attorney-client privilege is differently defined in various
jurisdictions. If a lawyer is called as a witness to give testimony
concerning a client, absent waiver by the client, rule 4-1.6(a)
requires the lawyer to invoke the privilege when it is applicable.
The lawyer must comply with the final orders of a court or other
tribunal of competent jurisdiction requiring the lawyer to give
information about the client.

The Rules of Professional Conduct in various circumstances
permit or require a lawyer to disclose information relating to the
representation. See rules 4-2.3, 4-3.3, and 4-4.1. In addition to
these provisions, a lawyer may be obligated or permitted by other
provisions of law to give information about a client. Whether
another provision of law supersedes rule 4-1.6 is a matter of
interpretation beyond the scope of these rules, but a presumption
should exist against a supersession.
Detection of Conflicts of Interest
Subdivision (c)(6) recognizes that lawyers in different firms
may need to disclose limited information to each other to detect and
resolve conflicts of interest, for example, when a lawyer is
considering an association with another firm, two or more firms are
considering a merger, or a lawyer is considering the purchase of a
law practice. See comment to rule 4-1.17. Under these
circumstances, lawyers and law firms are permitted to disclose
limited information, but only once substantive discussions
regarding the new relationship have occurred. Any disclosure
should ordinarily include no more than the identity of the persons
and entities involved in a matter, a brief summary of the general
issues involved, and information about whether the matter has
terminated. Even this limited information, however, should be
disclosed only to the extent reasonably necessary to detect and
resolve conflicts of interest that might arise from the possible new
relationship. The disclosure of any information is prohibited if it
would compromise the attorney-client privilege or otherwise
prejudice the client (e.g., the fact that a corporate client is seeking
advice on a corporate takeover that has not been publicly
announced; that a person has consulted a lawyer about the
possibility of divorce before the person’s intentions are known to the
person’s spouse; or that a person has consulted a lawyer about a
criminal investigation that has not led to a public charge). Under
those circumstances, subdivision (a) prohibits disclosure unless the
client or former client gives informed consent. A lawyer’s fiduciary
duty to the lawyer’s firm may also govern a lawyer’s conduct when
exploring an association with another firm and is beyond the scope
of these rules.

Any information disclosed under this subdivision may be used
or further disclosed only to the extent necessary to detect and
resolve conflicts of interest. This subdivision does not restrict the
use of information acquired by means independent of any
disclosure under this subdivision. This subdivision also does not
affect the disclosure of information within a law firm when the
disclosure is otherwise authorized, for example, when a lawyer in a
firm discloses information to another lawyer in the same firm to
detect and resolve conflicts of interest that could arise in connection
with undertaking a new representation.
Acting Competently to Preserve Confidentiality
Paragraph (e) requires a lawyer to act competently to
safeguard information relating to the representation of a client
against unauthorized access by third parties and 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 4-1.1, 4-5.1
and 4-5.3. For example, a lawyer should be aware that generative
artificial Intelligence may create risks to the lawyer’s duty of
confidentiality. The unauthorized access to, or the inadvertent or
unauthorized disclosure of, information relating to the
representation of a client does not constitute a violation of
paragraph (e) if the lawyer has made reasonable efforts to prevent
the access or disclosure. Factors to be considered in determining
the reasonableness of the lawyer’s efforts include, but are not
limited to, the sensitivity of the information, the likelihood of
disclosure if additional safeguards are not employed, the cost of
employing additional safeguards, the difficulty of implementing the
safeguards, and the extent to which the safeguards adversely affect
the lawyer’s ability to represent clients (e.g., by making a device or
important piece of software excessively difficult to use). A client
may require the lawyer to implement special security measures not
required by this rule or may give informed consent to forgo security
measures that would otherwise be required by this rule. Whether a
lawyer may be required to take additional steps to safeguard a
client’s information in order to comply with other law, for example
state and federal laws that govern data privacy or that impose
notification requirements on the loss of, or unauthorized access to,

electronic information, is beyond the scope of these rules. For a
lawyer’s duties when sharing information with nonlawyers outside
the lawyer’s own firm, see the comment to rule 4-5.3.
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. Whether a lawyer may be
required to take additional steps in order to comply with other law,
for example state and federal laws that govern data privacy, is
beyond the scope of these rules.
Former client
The duty of confidentiality continues after the client-lawyer
relationship has terminated. See rule 4-1.9 for the prohibition
against using such information to the disadvantage of the former
client.
Amended July 23, 1992, effective January 1, 1993 (605 So.2d 252);
amended Oct. 20, 1994 (644 So.2d 282); March 23, 2006, effective May 22,
2006 (933 So.2d 417); amended July 7, 2011, effective October 1, 2011 (67
So. 3d 1037); amended May 29, 2014, effective June 1, 2014 (140 So. 3d
541); amended June 11, 2015, effective October 1, 2015 (167 So.3d 412);
amended March 16, 2023, effective May 15, 2023 (SC22-1292); amended
August 29, 2024, effective October 28, 2024 (SC2024-0032).