for the client during the pendency of a no-contact order in the criminal case in which the Attorney was representing the Former Client . Thus , under Rule 1.6 , the information sought from Attorney is confidential and Attorney has a duty to maintain the confidentiality of the information .
II . Disclosure of the requested information is permitted to prevent substantial injury to the financial interests of another .
Having concluded the Attorney has a duty of confidentiality as it relates to the requested information , the question then becomes whether one of the exceptions of Rule 1.6 applies . Those exceptions are : ... the disclosure is impliedly authorized in order to carry out the representation , or the disclosure is required by paragraph ( b ) or permitted by paragraph ( c )...
( b ) A lawyer is required to reveal information relating to the representation of a client to the extent the lawyer believes reasonably necessary to prevent reasonably certain death or substantial bodily harm .
( c ) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary :
( 1 ) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer ’ s services ;
( 2 ) to prevent , mitigate , or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client ’ s commission of crime or fraud in the furtherance of which the client has used the lawyer ’ s services ;
( 3 ) to secure legal advice about the lawyer ’ s compliance with these Rules ;
( 4 ) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client , to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved , or to respond to allegations in any proceeding concerning the lawyer ’ s representation of the client ;
( 5 ) to comply with other law or a court order ; or
( 6 ) to detect and resolve conflicts of interest arising from the lawyer ’ s change of employment or from changes in the composition or ownership of a firm , but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client .
Under the facts presented , Former Client has not consented to disclosure nor is disclosure necessary to carry out the representation . Therefore , neither of those exceptions would allow disclosure . Moreover , disclosure to the claims attorney is not required to prevent substantial bodily harm or death , to defend against a claim , to secure legal advice about compliance , or to resolve an employment conflict . Finally , under the facts presented , no “ other law ” or “ court order ” requires disclosure .
However , it does appear disclosure may be permitted under Rule l . 6 ( c )( l ), ( 2 ) which allows disclosure to prevent Former Client from committing a crime or fraud reasonably certain to result in substantial injury to the financial interests of another and / or to prevent , mitigate , or rectify a substantial injury to another ’ s financial interest that is reasonably certain to result . Under the provided facts , Former Client is seeking a claim for costs incurred for off-post housing from 2013 even though the order which prohibited him from living on-post appears not to have taken effect until 2014 . More importantly , Former Client is claiming $ 68,000 in out-ofpocket expenses because the chain-of-command denied a request for on-post housing which is contrary to the information received by Attorney from the chain-of-command . Therefore , it appears Former Client has asserted a fraudulent claim which would permit – but not require – Attorney to disclose the requested information .
Here the facts do not indicate Attorney has contacted Former Client to persuade Former Client to take action to eliminate the need for disclosure and identify the permissive disclosure outlined in Rule l . 6 ( c )( l ), ( 2 ). The Rule seems to contemplate this as the first course of action .
Where practicable , the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure . In any case , a disclosure adverse to the client ’ s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose . If the disclosure will be made in connection with a judicial proceeding , 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 .
N . D . R . Prof . Conduct 1.6 cmt . 15 . If , following contact by Attorney , Former Client intends to persist in what Attorney believes to be an unlawful course and Attorney continues to believe disclosure is necessary to prevent that , then disclosure is permitted .
It is important to emphasize disclosure is permitted at Attorney ’ s discretion and is not required . Comment 15 to Rule 1.6 provides useful factors to consider in making this decision :
Paragraph ( c ) permits but does not require the disclosure of information relating to a client ’ s representation to accomplish
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