By Order dated August 15, 2019, the Supreme Court of Pennsylvania amended Rule 1.6 of the Pennsylvania Rules of Professional Conduct to assure that lawyers who are directed by tribunals or required by law to disclose confidential information will not violate the confidentiality rule by doing so.
The Rules of Professional Conduct were adopted based on the American Bar Association’s Model Rules of Professional Conduct. At issue is a provision in Model Rule 1.6(b) which establishes an exception to the confidentiality requirements in that rule:
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
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(6) to comply with other law or a court order …
Subsection 6 was not in the initial draft of Model Rule 1.6, and was not incorporated into the Pennsylvania Rules of Professional Conduct when they were adopted in 1988. The prior Disciplinary Rule regarding confidentiality, DR 4-101, contained a provision that lawyers could reveal confidences and secrets when permitted under Disciplinary Rules or required by law or court order, but when Pennsylvania adopted a version of the Model Rules of Professional Conduct, this language was not carried over into the language of RPC 1.6. Comments (18) and (21) to the rule address what a lawyer should do if required by law or ordered to reveal confidential information, but only direct the lawyer to discuss the matter with the client without providing guidance for what the lawyer should do if the client insists on maintaining confidentiality adversely to the requirements of the law or court order
In 2002, upon a recommendation arising from the report of the Ethics 2000 Commission for updates in the Model Rules, the ABA amended Rule 1.6 to add the exception in Subparagraph 6. Subsequently, 46 states and the District of Columbia followed suit and amended their rules to incorporate the new exception. However, the Pennsylvania rule was never presented to or amended by the Supreme Court of Pennsylvania to reflect this change.
The matter came to the Board’s attention in connection with border law enforcement. The Board learned that under Federal law, border officials are lawfully entitled to demand access to information on electric devices of persons crossing the border. This raised the possibility that officials could obtain access to confidential client information stored on those devices. Lawyers engaging in international travel could find themselves in a difficult position. Either they would have to refuse to allow inspection of their devices, putting them at risk of violating Federal law, or allow access, which would technically violate Rule 1.6. The amendment to Rule 1.6 allows lawyers to comply with applicable law or court order without risk of ethical issues for violating confidentiality requirements.