Revision to ABA Rule 1.6 and the conflicting duties of the lawyer to both the client and society, The

revision to ABA Rule 1.6 and the conflicting duties of the lawyer to both the client and society, The

Casey, Patrick T

An advocate, in the discharge of his duties, knows but one person in all the world, and that person is his client.

Lord Brougham

The first duty of law is to keep sound the society it serves.

President Woodrow Wilson

INTRODUCTION

Confidentiality is considered one of the most vital and fundamental attributes of the attorney-client relationship. As Ramon Mullerat stated at the ABA Ethics 2000 Commission Public Hearing on February 10, 2000, “of all the ethical values, probably none is more important than the principle of client confidentiality.”3 Yet, it has long been recognized that there are certain exceptions to this confidentiality where the interests of society outweigh the interests of the client. The former Rule 1.6 of the ABA Model Rules of Professional Conduct (Former Rules) has, since 1983, allowed only very narrow circumstances which may permit a lawyer to reveal confidential information.4

This Note will discuss the changes Rule 1.6 has, and has not, undergone since Ethics 2000 and some of the debate surrounding these changes. Part I will deal with the exceptions to confidentiality under the Former Rules and compare and contrast them with the revision of the ABA Model Rules of Professional Conduct (Revised Rules). Part II will analyze the changes accepted to Rule 1.6(b)(1) and the changes to Rule 1.6(b)(2) and 1.6(b)(3) that were proposed, but ultimately rejected. Part III will set forth the reasons for the Commission’s recommended changes and the House’s ultimate decisions to accept or reject those proposals. In particular, the Note will focus on the conflict of the lawyer’s duties to the client and the lawyer’s duties to society. Finally, the Note concludes with a brief discussion of what affect, if any, the newly-accepted changes may present to the attorney striving to serve the interests of the client and society alike.

I. RULE 1.6: THEN AND Now

Among the most significant developments of the Revised Rules are changes to Model Rule 1.6. A brief comparison of the old and new versions of the rule will highlight exactly what has been added, removed or simply relocated.

A. THE FORMER RULE 1.6

Under the Former Rules, a lawyer was strictly forbidden from revealing information that was related to representation of a client without explicit and informed consent from the client or implied authorization to disclose so that a lawyer may effectively carry out the representation.5 However, the Former Rules recognize two circumstances in which a lawyer may exercise discretion and choose to reveal otherwise confidential information. Former Rule 1.6(b) states:

A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or

(2) 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.6

It is important to note that even under these exceptional circumstances a lawyer is not required to reveal any information but simply “may.”7

B. REVISED RULE 1.6

Under the Revised Rules, Rule 1.6(a) has undergone some relatively minor linguistic changes that serve only to simplify and clarify its previous meaning.8 Revised Rule 1.6(b), on the other hand, shows some substantial differences from the previous version. First, the modification to Rule 1.6(b)(1) is a truly significant change. The Revised Rule reads:

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:9

(1) to prevent reasonably certain death or substantial bodily harm.10

Absent are the words “criminal” and “imminent,” which formerly made this exception more narrow.” The new rule offers lawyers wider latitude to decide whether to reveal information where others are in serious danger.12 This greater latitude recognizing an “overriding value of life and physical integrity” as compared with the value of strict lawyer-client confidentiality.13

Second, the Commission proposed two further exceptions in Rule 1.6(b)(2) pertaining to situations in which a client was committing or had committed financial fraud with the assistance of the lawyer’s services.14 Under these proposed exceptions, a lawyer may reveal information to the extent necessary:

(2) 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;

(3) 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 a crime or fraud in furtherance of which the client has used the lawyer’s services.15

As opposed to the proposed changes to Rule 1.6(b)(1), the Commission’s recommendations for Rule 1.6(b)(2) and (3) were ultimately rejected by the House of Delegates in August 2001.16 Proposed Rule 1.6(b)(2) would have permitted disclosure simply to “prevent” a crime or fraud that had occurred, or was occurring, that would seriously damage another’s finances or property, while part (b)(3) would have permitted disclosure to “mitigate” and “rectify” such damages, as well as to “prevent” them.17 However, it has been pointed out that at least “40 of the 51 U.S. jurisdictions permit or require a lawyer to disclose client confidential information to the extent necessary to prevent a client criminal fraud likely to cause substantial financial injury to another.”18

Third, the Revised Rules include a completely new exception, which was accepted by the House of Delegates. Revised Rule 1.6(b)(4) states that disclosure is permissible:

(4) to secure legal advice about the lawyer’s compliance with these Rules.19

This addition is designed to allow and encourage lawyers to seek advice on compliance with ethical rules.20 The implication that such disclosure would more than likely be authorized to competently represent the client, but it is permitted even without such inference due to the “importance of a lawyer’s compliance with the Rules of Professional Conduct.”21

Fourth, Rule 1.6 (b)(2) of the Former Rules has been retained in its entirety but has been moved to (b)(5) in the Revised Rules?22

Finally, the Revised Rules have added another new exception that also was approved by the House of Delegates. This exception, (b)(6), allows for disclosure to comply with other law or a court order.23 Much like (b)(4), exception (b)(6) simply makes explicit acknowledgement of what has long been regarded as a proper and necessary circumstance for disclosure.24 However, it is important for the lawyer to first determine whether the other law at issue actually supersedes Rule 1.6.25

II. THE LAWYER’S CONFLICTING DUTIES UNDER RULE 1.6

As noted above, the notion that information a client communicates to the lawyer in the course of representation will be kept strictly confidential is a hallmark of the profession. Not only is confidentiality necessary to inspire the trust needed for clients to be perfectly candid with their lawyer, but it is also inherent in the lawyer’s role as advocate for the client.26 On the other hand, the lawyer is also an officer of the court, and has the duty to uphold the law. This duty is to society at large. It is immediately clear that these duties are often at odds with one another and that lawyers will frequently feel as though they have to choose to serve one or the other interest. After all, how can a lawyer truly be said to represent the cause of his client if he is informing others against the client? Conversely, how can a lawyer serve the societal end of justice while standing silent in the face of knowledge that innocent lives are in peril? It is precisely this balance which Rule 1.6 seeks to achieve.

A. THE LAWYER’S DUTIES TO THE CLIENT AS ADVOCATE

It has been noted that “[t]he revisions to 1.6 make the Model Rules more consistent with the ethics rules adopted by most jurisdictions of licensure,” as well as the Restatement of the Law Governing Lawyers?27 Nevertheless, these changes have also limited the confidentiality that clients can expect to receive from their lawyers.

1. THE IMPORTANCE OF MAINTAINING CLIENT TRUST

The stated goals of the Ethics 2000 Commission were: to “update the Model Rules in light of developments since the Rules were adopted in 1983” and to “take a position of leadership in proposing rules the Commission thinks make the most sense and have the potential to bring greater uniformity among the states.”28 In pursuance of these goals, the Commission accepted comments from various members of the legal community, some of which have been cited here. Many of the comments emphasized the crucial necessity of maintaining client trust.29 This trust is vital because, in the course of representation, the lawyer “becomes privy to a great deal of information . . . and the client will come to rely on the lawyer to protect such information for, among other things, his livelihood, his liberty, or even his life.”30 In addition, without confidentiality lawyers could routinely be forced to testify against their clients, which would be devastating to the adversary system and deny effective assistance of counsel in legal proceedings.31 Despite the Revised Rules’ broadening of 1.6(b)(1) permissive disclosure the Commission has successfully achieved a balance between recognizing the need to maintain client confidentiality and allowing the lawyer to make limited and necessary disclosures.

2. THE DANGER OF CHANGING THE ADVOCATE’S ROLE TO THAT OF WHISTLEBLOWER

Some scholars and practitioners are uneasy about broadening the scope of permissive disclosure. It has been noted that

the proposed amendment to Rule 1.6(b) permitting lawyers to disclose confidential information to rectify consequences of a client’s criminal or fraudulent act was rejected by the House of Delegates in 1991. There is an absence of empirical evidence to justify revisiting such restrictions on the duty of confidentiality in modern practice.32

The usual argument is that the rule must be as narrow as possible, so as to avoid the undesirable result of encouraging lawyers to “rat” on their clients, or, as one commentator put it, “altering the lawyer’s role in the client-attorney relationship from counselor to whistle-blower.”33

For example, a client may say he wants to kill someone in a week, but change his mind. If the lawyer reveals this information, then the lawyer-client relationship will be destroyed, and the client’s interests will be harmed even though there was never any real danger of violence to another. One commentator, David L. Praver, a former Chair of the California State Bar of the Governor’s Committee on Professional Responsibility and Conduct, seems loath to weaken client confidentiality by increasing circumstances of permissive disclosure. Praver wrote,

Confidentiality encourages full disclosure. If the client fears that the lawyer may, should, or must disclose client’s confidences and secrets, as well as confidential communications, honesty and full candor will not be an element of that attorney client relationship. To effectively represent a client, full disclosure is an essential element. If there is full disclosure, the attorney can counsel the client and perhaps convince the client not to pursue the stated course of conduct. Without the confidentiality, the client doesn’t disclose and the attorney is removed from the process of counseling the client.34

Furthermore, the lawyer cannot really know what will happen in many instances and client confidentiality should not be abandoned in favor of speculation on merely potential and uncertain future harms.35 The public will lose faith in the profession and the end of justice will not be served.36 In fact, some believe that a broadened rule actually creates conflicts of interest rather than relieving them.37

The fear that the public will lose faith in the profession seems to be mostly unsubstantiated however, when one considers that “[b]y a wide margin, Rule 1.6 has been rejected more frequently than any other Model Rule as the states have revised their ethics codes in the 1980s and 1990s,” without a noticeable drop off in either client trust or effective representation.38 This is likely because the broader rule strikes an appropriate balance, at least in Revised Rule 1.6(b)(1), by eliminating the unnecessarily narrow categorizations of “imminent” and “criminal,” but requiring the lawyer to be “reasonably certain” that the serious harm will result.39 This language allows for a broader range of harmful acts to be prevented, while discouraging lawyers from engaging in overly speculative disclosures.40

B. THE LAWYER’S DUTIES TO SOCIETY AS AN OFFICER OF THE COURT

In addition to the important duties that an attorney owes his client, he also must take appropriate steps to serve society as an officer of the court. What is exactly meant by serving society as an officer of the court may not be intuitively clear, yet in the context of Rule 1.6 this relates to how the duty might impinge on societal goals of justice and the lawyer’s role in preventing, mitigating, or remedying harm to others.41

In fact, the Ethics 2000 Commission recognized the importance of an attorney’s duties to society and reflected this through its proposed changes to Rule 1.6.42 These changes were largely meant to broaden the situations in which a lawyer may break with the usual requirement not to reveal information pertaining to the client’s representation.43 Proposed changes like those in Rule 1.6 have been noted as necessary by many who decry what they view as an overbroad and over-encompassing confidentiality rule that requires well-meaning attorneys to stand idle and allow harm to take place that they could have prevented or mitigated.44 As noted, Rule 1.6 has been rejected more frequently by the states than any other Model Rule.45 Much of the reason for this chilly reception is that Rule 1.6 was viewed as too tightly constraining on attorneys in promoting societal interests.46

Because Rule 1.6 proposes permissive disclosures as opposed to mandatory disclosures, the individual attorney will have the discretion to decide whether or not the client’s interests are paramount to any outside threat.47 Placing this discretion in the hands of the attorney has been cited as essential so that the well-meaning attorney will not be inflexibly bound by confidentiality rules that are either too broad or too ambiguous to apply to specific sets of circumstances.48

And, although the proposed changes create additional bases for disclosure, they “allow disclosure only in situations in which a client has no rightful expectation of confidentiality.”49 The rationale for this limited disclosure is that one who wishes to seriously harm another should never reasonably expect that the law will protect the confidentiality of the proffered information.50 Proponents of the theory posit that “[i]n those circumstances, you might say there was never a true professional relationship to begin with because the client’s purposes were inconsistent with the reasons for protecting these relationships.”51 While there are strong reasons for the broad scope of the confidentiality rule, there are sound policy rationales for providing clarification and broadening of the exceptions where great potential harm may lie.

In this section, the Note will examine three exceptions to the confidentiality rule proposed by the Ethics 2000 Commission and the arguments for why these proposals should have been accepted by the ABA House of Delegates. The first concerns the “death or bodily harm” exception and the second and third will be taken together as they both involve financial injury.

1. THE BODILY HARM EXCEPTION

One of the major changes to Rule 1.6 proposed by the Commission was that the language of Rule 1.6(b)(1) be modified in order to expand the exception allowing for disclosure to prevent death or bodily harm.52 The particular language used in the proposal is that disclosure is permitted “to prevent reasonably certain death or substantial bodily harm.”53 This provision departs from the previous rule in three ways. One, it eliminates some of the Rule’s text, including the word “criminal” and thereby “allow[s] disclosures in circumstances of peril without a finding by the lawyer that the client conduct is a crime.”54 Two, the new proposal would no longer require that the death or substantial bodily harm be imminent.55 Finally, it enables a lawyer to disclose when “reasonably certain” that death or serious injury might result, as opposed to this harm having to be “likely,” which was required by the previous rule.56

It has long been public policy to accept the premise that protecting individuals from serious bodily harm or death supersedes a client’s interest in confidentiality of information.57 Of course, confidentiality is a time-honored element of the attorney-client relationship.58 A number of scholars, like Irma Russell, openly support disclosures where the potential harm rises to the level of serious bodily injury or death, and regard the original wording of Rule 1.6 as “allowing or encouraging lawyers to remain silent in the face of peril to others.”59 Consequently, those sharing Russell’s viewpoint consider a rule so worded to contravene public policy.60

In addition, Russell and others believe that the wording of the Former Rule seems to make the job of the attorney faced with this threatening information too difficult.61 For example, the term “criminal” can be read to impose a more concrete requirement of knowledge of the threat before disclosure could be permitted.62 The term “imminent” can prove ambiguous in the myriad circumstances under which harm might arise.63 In addition, to protect only against serious bodily harm or death that might arise imminently, while excluding conduct that might take place just after that point in time, does not seem right or logical.64 As a result, much uncertainty exists in Rule 1.6(b)(1).65 This uncertainty has caused scholars to note that the Former Rule left unanswered numerous questions: Would the conduct rise to the level of a crime? Is a certain level of criminal activity necessary or would any crime suffice? Is the threat imminent? What if a timeframe has not been mentioned?66

The existence of unanswered, confounding questions such as these has been cited as precisely why Rule 1.6(b)(1) requires tweaking.67 Any attempt at clarifying this Rule should make compliance easier as it guides the well-meaning and scrupulous practitioner through perplexing ethical quagmires.68 Therefore, these suggested revisions were well received by numerous scholars who find the revisions aptly “strike the balance in favor of the interest of individuals to maintain life and bodily integrity.”69

2. THE FINANCIAL INJURY EXCEPTION

Yet another significant change proposed by the Ethics 2000 Commission involved the addition of Rule 1.6(b)(2) and (3).70 These two new subsections were meant to prevent clients from using lawyers’ services to facilitate “substantial injury to the financial interest or property of another.”71 Rule 1.6(b)(2) was specifically geared toward the prevention of client crime or fraud in which the client is aided by the attorney’s services.72 Rule 1.6(b)(3) is similar to the preceding section yet it enables disclosure to not only prevent financial harm, but also to mitigate or to rectify that harm after the harm has been set on its course.73 Disclosures such as these would only be permissible when the client’s conduct involved a crime or fraud and the client utilized the lawyer’s services toward that end.74

It warrants mentioning that the financial harm exclusions proposed in Rule 1.6(b)(2) and (3) are not new. In fact, the original Kutak Commission draft included provisions similar to the wording in Rule 1.6(b)(2) and (3).75 Also, as was noted earlier, most states, since the 1983 enactment of the Former Rules, have thought it advisable on their own accord to permit disclosure in situations involving financial harm.76 And, proponents like Russell further claim that concerns over the breadth of the additional disclosure provisions of Revised Rule 1.6 should be allayed because this exception expands the basis for disclosure “only in the rare circumstances of criminal or fraudulent conduct by a client who is misusing the lawyer’s services to further the culpable enterprise.”77

On the topic of policy, proponents of these new sections defend them as vital so that lawyers can guard against their services being utilized in the furtherance of a crime or fraud waged against the financial or property interests of others.78 These sections would permit a lawyer presented with otherwise confidential information to disclose it to prevent, mitigate, or rectify the potential harm.79 The previous rule makes no specific exception for harm to one’s financial or property interests.80 Under the old rule, numerous instances of acute criminal and fraudulent financial acts have occurred, including the recent highly publicized Enron scandal.81 Instances of such financial fraud and crime-arguably made possible by the work of attorneys-exact an enormous cost on individuals, corporations, and society each year.82

So, to those sharing Russell’s view, a Rule 1.6 that provided for disclosure when the attorney has knowledge that financial or property harm is to be committed is advisable because it could make a positive difference to the interests of our society.83 Such an exception could prevent the harm from ever taking place and “undo damage in which the lawyer may have been an unwitting facilitator.”84 The proposed changes to Rule 1.6(b)(1) enables attorneys to more clearly know when they are able to prevent their services from furthering criminal or fraudulent activity.85 In addition, the proposed changes to Rule 1.6(b)(2) and (3) avails attorneys with a new tool to ensure that their duties to society will be maintained.

Taking the steps toward prevention, mitigation and maintaining the corresponding societal duties are not the only values that can come from permitting disclosure in these circumstances. Being able to disclose under the Revised Rule 1.6(b)(2) and (3) could also benefit the attorney personally. For example, making a disclosure under such circumstances can provide the attorney with a hedge against the likelihood that the client’s victim would sue, or at least be successful in suing, the attorney for his or her role.86

IV. THE DECISIONS BY THE HOUSE OF DELEGATES

After much input and deliberation, the Ethics 2000 Commission passed along its recommended proposals, including those pertaining to Rule 1.6, to the ABA House of Delegates.87 In August of 2001, the House of Delegates tentatively approved the danger to life or safety disclosure exception, yet rejected the two sections concerning client financial crime or fraud.88 Next, the Note will explore the probable reasons why the House of Delegates took the actions it did.

As alluded to earlier, a multitude of groups, legal practitioners, academics, members of the ABA Ethics 2000 Commission, and members of the public were given the opportunity to be heard on the proposed changes to Rule 1.6.89 A number of those who offered their opinions voiced concern about any modification or addition that would expand exceptions to the confidentiality rule.90 Some went so far as to regard the confidentiality rule as a primordial right and duty of the legal profession that “must be defended against attacks.”91 Those of this deep-rooted viewpoint would consider any weakening of the general confidentiality rule as troublesome.92

Thus, all of the exceptions discussed in this Note came under some fire. Yet, the bodily harm exception did not apparently face as much of a firestorm as the financial injury exceptions.93 One reason for this distinction is simple – the bodily harm exception was already part of the Rule.94 Although the change in the exception’s language served to broaden the opportunities for disclosure, it would be difficult to say that the confidentiality rule was terribly weakened by virtue of the change.95 Another explanation is a matter of pure substance. The bodily harm exception speaks of the threat of substantial bodily harm or death.96 American society is, naturally, much less inclined to countenance serious bodily injury or death to individuals than mere financial injury.97 Therefore, it seems that in the minds of the members of the House of Delegates, the very strong policy rationales for protecting human life outweighed the potential costs of the diminishing attorney-client confidentiality and justified the modification of Rule 1.6(b)(1).

Furthermore, the financial injury exception was proposed twice before – in 1983 and in 1991 – and was rejected each time by the House of Delegates.98 The reasons why the House of Delegates has repeatedly refused to approve sections relating to financial injury are numerous. Perhaps the primary reason for these refusals, which was alluded to above, has to do with the House of Delegates having trouble finding adequate policy justification for further infringing on the confidentiality rule.99 There is no doubt that crime or fraud involving financial or property interests costs innocent victims and society a great deal annually. Yet, on balance, the House of Delegates has been unwilling to say that the prevention or mitigation of this potential harm outweighs the weakening of the attorney-client relationship that would result by a narrowing of the confidentiality rule.100 Moreover, some delegates were concerned about the potential of establishing additional exceptions, mainly because doing so could be viewed as establishing new “duties” or professional standards to disclose and could make lawyers sitting ducks for litigation pursued by third parties injured by client’s actions.101

Some opinions addressed to the House of Delegates argued that it is not an attorney’s job to focus on whether the client has revealed too much to the attorney. As one group’s testimony set forth, “competent attorneys do not serve in the role of judge or jury of their client’s conduct.”102 This same group elaborated that “there is a greater need today to protect the privacy interests of individual clients and to preserve the duty of confidentiality rather than attempting to revitalize the Kutak Commission’s original proposals.”103

Although the House of Delegates refused once again to adopt the financial injury exceptions, they did provide a tool that may be used by an attorney who complies with his duty to withdraw where his services will be used “in materially furthering a course of criminal or fraudulent conduct.”104 The so-called “noisy withdrawal” provision enables an attorney the right to “withdraw or disaffirm” any opinion or other written work product where he or she believes withdrawal alone may not be sufficient to disassociate the attorney from the client’s crime or fraud.105

Yet, to those who favored the inclusion of an explicit financial injury rule, the “noisy withdrawal” provision is an insufficient substitute. Cramton remarks that simply allowing for a noisy withdrawal is inadequate because, “[it] will be ineffective in situations in which the victim of the fraud fails to understand the hidden meaning of the signal . . . and constitutes a fertile source of confusion.”106

IV. CONCLUSION

The exceptions in Proposed Model Rule 1.6 represented an ambitious attempt by Ethics 2000 Commission members to permit the attorney greater discretion to disclose client information in order to help maintain the attorney’s duty to society. The House of Delegates embraced some of the recommended components, yet voted to not authorize disclosures in the context of financial injury. Thereby the House made plain its core belief that the attorney’s duty to the client is still of epic importance to the proper functioning of our justice system. No doubt this statement is symbolically significant, coming from the nation’s largest bar association.107 The practical effect of the House’s decision can be questioned, however, at a time when the A.B.A. has no power to bind states to its resolutions and when almost every U.S. jurisdiction already permits financial injury exceptions.108 With that said, students and practitioners alike can reflect on the deliberative and thorough process utilized by the A.B.A. in its consideration of these measures and come away with the understanding that the legal profession places great emphasis on both the attorney’s duty to the client and to society. Consequently, regardless of the jurisdiction where an attorney practices, great pains should be taken to act in accordance with these sometimes conflicting and ambiguous, yet ever-imperative professional duties.

PATRICK T. CASEY* & RICHARD S. DENNISON** ***

* J.D., Georgetown University Law Center (expected May 2004). B.A., Pennsylvania State University, 2001.

** J.D., Georgetown University Law Center (expected May 2004). B.A., University of Pennsylvania, 1999.

*** The authors would like to thank their families for their abiding support and would also like to thank their editors, especially Brian Altman and Chris Sabis, for their thoughtful observations and general assistance in composing this Note.

Copyright Georgetown University Law Center Summer 2003

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