The representative body’s House of Delegates approved an amended model rule at its recently concluded annual meeting, providing guidelines for the disclosure of client information to detect and resolve possible conflicts in discussions between law firms. It will be a matter for individual state bar associations to adopt the model; similar measures are already in place in Massachusetts and Colorado.

Harming interests

According to the ABA Journal, the model rule states that client information may be revealed in law firm discussions if it does not compromise lawyer-client confidentiality or otherwise harm the client’s interests. The rule also stipulates that client information should not be divulged until substantive discussions have taken place.
Previous ABA guidance did not specify whether lawyers discussing mergers or recruitment could make known the identities of clients. James Gorelick, co-chairman of the commission recommending the reform, told the JD Journal that the rule was intended to provide ‘more certainty’ and that ‘our hope is that with clear rules there will be less disclosure of client information that shouldn’t be disclosed’.

Criticism

Nonetheless, the change was criticised by various ABA factions, including the litigation section, on the grounds that lawyers should obtain permission from clients before disclosing any details. The objection was rejected in the vote, with the delegates broadly agreeing with the position voiced by Barbara Mendel Mayden in the ABA journal that it would be ‘unworkable’ to demand client consent.
It is unclear how many state bars will implement the rule. Many currently offer no guidance on the disclosure of client information, with influential associations in New York, California and Illinois -- among others -- having no rules on the matter.