Sharing is Caring

Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct states that “confidential information” includes both privileged information and unprivileged client information.  

“Privileged information” refers to information protected by attorney-client privilege under Texas Rule of Evidence 503 or Federal Rule of Evidence 501.  

“Unprivileged client information” means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

Rule 1.05(b)(1) states: 

(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly:

(1) Reveal confidential information of a client or a former client to

(i) a person that the client has instructed is not to receive the information; or

(ii) anyone else, other than the client, the clients representatives, or the members, associates, or
employees of the lawyers law firm.

While the Rule contains a number of exceptions in paragraphs (c) and (d), none of those apply here.  So what can an attorney do when she leaves her firm and wants to take documents that she prepared for clients? 

Texas Ethics Opinion No. 670 (March 2018) provides useful guidance.  The opinion states that an attorney may, upon leaving a firm, and at her own expense, make and retain copies of documents regarding client matters in which the attorney personally represented the clients while at the firm she is leaving.  The consent of neither the firm nor the clients is required to make and retain copies of these client documents, as long as the attorney is responsive to a former client’s request for copies of the documents retained by the lawyer.  

However, an attorney should be aware that all confidential client information, as defined by Rule 1.05, must be protected as long as the attorney retains the documents.   Therefore, the prudent attorney will take steps to ensure that only she has access to unredacted paper copies and that the electronic copies are stored in a manner that is not accessible by anyone at the new firm. Any documents that are provided to members of the new firm must be redacted of all confidential information prior to sharing.  If the documents are so specific and unique that even using a redacted document could reasonably lead to the discovery of client-specific information, those documents cannot be shared.   

In this scenario, the attorney had the right to make and take copies of clients’ documents from matters in which she personally represented those clients to use as forms in her next firm, and she did not need to notify either the client or Firm X that she was doing so.  She has a right to retain the documents as long as they are copies.  

Sharing the forms in the new firm is also acceptable as long as she redacts the documents of any identifying information to protect the clients’ confidentiality.  Here, she did delete all identifying information from the electronic form, so that does not violate Rule 1.05.  Unfortunately, she failed to make any redaction from the paper copy that she shared with a lawyer at Firm Y.  Disclosure of a client’s confidential information – including even the client’s identity – violates Rule 1.05.  

The best answer is B.