You’re chatting with your pals at the bar association cocktail hour, and talk turns to the indictment just handed down against a former city official. Someone says, “Hey, didn’t your firm used to represent her?” “Yes,” you reply, “and a couple years ago, I had a really interesting case involving her. Maybe I shouldn’t discuss it — but I guess it’s of public record, so….” And with that, you’re off to the races, discussing your former client’s old case. Have you done anything wrong, since it’s all “of public record”?
“Publicly available” vs. “generally known”
Model Rule 1.9(c) says that when you have formerly represented a client in a matter, you shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Comment  notes that formerly representing a client “does not preclude the lawyer from using generally known information about that client when later representing another client.”
But significantly, just because information might be a matter of “public record,” or “publicly available” in a court filing, does not necessarily mean that it is “generally known” within the meaning of the ethics rules. That’s the holding of a case decided last month by the Pennsylvania Superior Court, Dougherty v. Pepper Hamilton LLP, et al.
The ruling in Dougherty revives a union official’s suit against the Pepper Hamilton firm for breach of fiduciary duty. The firm had formerly represented the official when he was subpoenaed by a grand jury as part of a federal bribery investigation. An FBI affidavit was part of that investigation; it was later mistakenly filed on the federal court’s electronic PACER system. Subsequently, the firm represented the Philadelphia Inquirer in defending a defamation suit by the same official against the newspaper. In representing the newspaper, Pepper Hamilton used the FBI affidavit.
The official alleged that the firm breached its duty to him by using information from the former representation, including the FBI affidavit. Pepper Hamilton countered that since the information was “publicly available,” it could not form the basis of a disloyalty claim.
The state court of appeals agreed with the official, reversing the lower court’s grant of summary judgment in favor of the law firm.
Duty of confidentiality not “nullified” by public record
Whether information is “generally known” for purposes of Rule 1.9, said the court, depends on the circumstances. The court said that publicly-accessible electronic data could be “generally known” if it is easily accessible, such as through public indexes. But information is not generally known if it would be difficult or expensive to obtain or would require special knowledge.
Quoting opinions from Ohio and West Virginia, the Dougherty court noted that “an attorney is not free to disclose embarrassing or harmful features of client’s life just because they are documented in public records or the attorney learned of them in some other way,” and that “the ethical duty of confidentiality is not nullified by the fact that the information is part of a public record or by the fact that someone else is privy to it.”
There were genuine issues of fact, the court said, about whether the FBI affidavit was actually “generally known,” and these questions were enough to keep the case against the law firm alive.
Your lips are sealed
In all, the safest thing to do at a cocktail party is to keep quiet about information you know as a result of formerly representing a client, even if you think that it is of “public record.” That’s the best way to steer far clear of any chance of misconduct. And when it comes to “using” information of a former client on behalf of another client, careful analysis is required before you conclude that the “generally known” exception applies.