Outsmart the MPRE: Confidentiality under Rule 1.6

Client confidentiality is frequently tested on the Multistate Professional Responsibility Examination (MPRE). Client confidentiality makes up 6–12% of the exam, which means you’ll see 3–7 questions that test confidentiality concepts.

To be prepared for these questions, you’ll need to understand several doctrines that require an attorney to preserve a client’s confidences, including attorney-client privilege, the work-product doctrine, and the lawyer’s ethical duty of confidentiality. This post focuses on the last category. Let’s unpack the duty of confidentiality and the wrong-answer traps that commonly appear on confidentiality questions. 

Lawyers have a duty to protect confidential information relating to the client-lawyer relationship under Model Rule of Professional Conduct 1.6. Confidential information encompasses any information relating to the representation of a client, regardless of the source. Information that a lawyer learns about a client or the client’s case from a third party, such as a witness, or from an independent source, such as a background check, is still considered confidential information. The duty of confidentiality extends even to information that isn’t itself confidential but that could reasonably lead a third party to discover confidential information. 

Under Rule 1.6(a), lawyers are permitted to disclose confidential information if the client either gives informed consent or the disclosure is impliedly authorized to carry out the representation. In addition, the duty of confidentiality is subject to some important exceptions, which are given in Rule 1.6(b). A lawyer may reveal confidential information for any of the following reasons:

MPRE questions frequently ask whether it’s proper for a lawyer to disclose client confidences. If you see a confidentiality question, watch out for these traps.

Be on the lookout for emotionally charged facts. The examiners often present a pressing need for the lawyer to disclose client confidences. For example, the lawyer represents a criminal defendant who has just revealed information related to an unsolved crime. The client’s revelations could crack open the unsolved case. Should the lawyer disclose the details to the police?

When faced with this type of fact pattern, avoid making conclusions based on your gut sense of justice. Instead, stick to the rules. Dispassionately analyze the lawyer’s duty according to the broad definition of confidential information. The default rule is that the lawyer must keep information relating to the client-lawyer relationship confidential unless the client has consented, the disclosure is impliedly authorized, or another exception applies.

As noted, the lawyer’s duty of confidentiality is subject to some important exceptions. The examiners often place the language of an inapplicable exception in a wrong answer option. This type of trap easily fools unwary examinees because the answer choice contains real language from Rule 1.6(b). For example, a wrong answer could state that the lawyer may reveal the confidences because the disclosure would prevent reasonably certain death or substantial bodily harm even though that exception isn’t applicable under the facts given.

Don’t pick an answer option simply because it contains an exception cribbed right from Rule 1.6(b). Instead, examine whether the exception applies to the given facts. With careful analysis, you’ll avoid the trap and be on your way to a passing score.

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