Testimony of Roger C. Cramton

SUMMARY OF PROPOSAL

Model Rule 1.6 should be substantially revised for a number of reasons.

First, the current rule fails to provide adequate guidance to lawyers concerning situations in which current law and other rules permit or require a lawyer to disclose client confidential information. The text of the rule does not make it clear that there are a number of circumstances in which other law or another rule may permit or require disclosure: a court order (e.g., a court's rejection of a claim of attorney-client privilege), another rule (e.g., Rule 3.3(a)), or other law (e.g., a valid law requiring a matrimonial lawyer to disclose child abuse to authorities). Language so providing was present in Model Code DR 4-101(C)(2) and has been included in the ethics codes adopted by a substantial number of states. The delphic statement in Comment [5] of Rule 1.6, to the effect that a lawyer may disclose information "as authorized or required by the Rules of Professional Conduct or other law" is not enough. These requirements should be made explicit in the text of the rule so that lawyers will not be misled.

Second, the current rule is an embarrassment to a profession that constantly states that it puts the needs of the public above its own interests. Rule 1.6(b)(2) permits disclosure of client confidential information to the extent necessary to protect a lawyer's economic and professional interests, whether those be collecting a fee from the client or responding to charges made by third persons concerning the lawyer's representation of a client. It departs from the historic traditions of the legal profession, embodied in the crime-fraud exception of the attorney-client privilege and the text of ABA professional codes from 1908 until the unfortunate amendment of DR 7-102(B)(1) in 1974, that a lawyer should be at least permitted to disclose to prevent a client from using the lawyer's services to perpetrate a fraud on another person. Model Rule 3.3(a) properly protects the social interest in the integrity of adjudication by requiring a lawyer to take reasonable steps to prevent or rectify a client fraud on a tribunal. Until 1974 ABA-recommended rules contained a companion provision concerning disclosure to prevent or rectify a client fraud on a third person in which the lawyer's services had been involved. Departure from this historic tradition is a self-inflicted wound on the part of the the leading national organization of lawyers, wholly inconsistent with the obligation of lawyers to refrain from counseling or advising a client in conduct that is criminal or fraudulent.

Fortunately, the ABA's refusal to recognize even permissive disclosure to prevent client fraud has been rejected by state high courts in adopting ethics codes based on the Model Rules framework. 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. A consensus on the client fraud issue has emerged that is reflected in the ethics codes of the vast majority of states and that has been restated in the ALI Restatement of the Law Governing Lawyers sec. 117B (Proposed Final Draft No.2, April 6, 1998). The ABA should now attempt to further national uniformity in legal ethics by doing what it should have done all along: empowering a lawyer to act effectively to control and prevent client fraud in an explicit rule provision.

The effort to cobble together various rule provisions, such as 1.2(d) and 1.16(a), to give life to the "noisy withdrawal" comment of Rule1.6 is an unsatisfactory solution. This approach attempts to do indirectly what is not made explicit in the text of the rules, which leads to confusion and uncertainty about the existence and scope of the permission to disclose. It provides an ineffective solution when unsophisticated clients are involved and no solution in situations in which there is no document or legal opinion to be noisily withdrawn. It makes the truthfulness requirement of Rule 4.1 ambiguous or misleading, since disclosure under that rule is limited to situations in which it is permitted by rule 1.6 (with no reference to the provisions relied on by ABA Formal Op. 92-366 (1992) in giving some life to "noisy withdrawal)."

Third, the exceptions to the professional duty of confidentiality of Rule 1.6(b) should be broadened to give broader protection to human life and bodily integrity than now provided by Rule 1.6(b)(1). The preconditions that limit the opportunity of a lawyer to disclose are too narrow. As the ALI has concluded, a lawyer should be permitted to act to preserve human life even when there is no affirmative act by the client but only an omission, when the act that is threatened is that of someone related to the client but not the client, and when the act is not criminal in character. See ALI, Restatement of the Law Governing Lawyers sec. 117A. The ABA also should follow the example that Massachusetts has given by permitting disclosure to prevent the wrongful incarceration or execution of a person.

A draft that incorporates these suggestions follows. It uses the language of the current ABA rule, which is now familiar and appropriate, to the extent possible. But it broadens the exceptions to confidentiality in accordance with the basic ideas just expressed. A supporting memorandum provides a more extensive argument in support of the positions advanced.

TEXT OF PROPOSED RULE 1.6

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized to carry out the representation, and except as stated in paragraphs (b) and (c).

(b) A lawyer shall reveal such information when required by law or court order and to the extent required by Rule 3.3 and Rule 4.1(b).

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

(1) to prevent death or substantial bodily harm;

(2) to prevent the wrongful incarceration or execution of another;

` (3) to prevent commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in substantial injury to the financial interests or property of another;

(4) to rectify or mitigate a client fraud in which the lawyer's services have been used; and

(5) 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.

SUPPORTING MEMORANDUM

[What follows is a portion of an article by Roger C. Cramton & Lori P. Knowles, Professional Secrecy and Its Exceptions: Spaulding v. Zimmerman Revisited (awaiting publication in the Minnesota Law Review).]

II. REFORMING THE LAW OF LAWYER SECRECY

Two bodies of law confer a large degree of justifiable secrecy on information acquired by lawyers in the representation of clients: the attorney-client privilege and the professional duty of confidentiality. A third and more recent doctrine, the work product immunity of procedural law, protecting information prepared in anticipation of litigation, is important, but will not be considered in this article.

A. The Moral Tradition of Lawyering Underlying the

Attorney-Client Privilege and the Professional Duty of Confidentiality

The attorney-client privilege of evidence law, the oldest of the privileges recognized by the common law, prevents the admission into evidence of a communication between a client and a lawyer made for the purposes of legal advice. The holder of the privilege is the client, but the lawyer has an ethical obligation to assert the privilege on behalf of the client when a question or request by a tribunal possessing the power to compel testimony seeks information that may be privileged.

The privilege is justified on utilitarian and humanistic grounds. The utilitarian justification of the attorney-client privilege starts with the assumption that individuals need informed legal advice to defend or secure their legal rights; informed legal advice not only serves the client's private interest but advances public interests of conformity to law and sound administration of justice. By encouraging the client to communicate all relevant information--even facts that are intimate, unpleasant or embarrassing--the privilege puts lawyers in the position to offer the client sound legal advice in counseling and effective advocacy in litigation. Clients, it is assumed, will choose among lawful alternative courses of action advised by the lawyer. Conduct will be channeled along law-abiding lines and the goals of the adversary system will be advanced by sound representation of all parties.

The humanistic or rights-oriented justification stresses the role of the privilege in advancing client autonomy, dignity and privacy. It also reflects the relationship between the attorney-client privilege and two provisions of the Bill of Rights: the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to effective assistance of counsel in criminal cases. An accused may not be convicted on the basis of a forced disclosure of the client's privileged communications to his lawyer. Forcing the accused's lawyer to testify concerning those communication would be an indirect way of requiring the accused to testify against himself and deny effective assistance of counsel.

The functions and purposes of the attorney-client privilege also determine its limits. The privilege is intended to further lawful advice and conduct. When the client, concealing his illegal intent and objective, consults a lawyer to commit or continue a crime or fraud, the privilege evaporates. The crime-fraud exception to the attorney-client privilege, recognized in all jurisdictions, is supported by two fundamental propositions of the profession's historic traditions and of state ethics codes: first, in all jurisdictions a lawyer is prohibited from counseling or assisting a client in unlawful conduct; and second, in the vast majority of jurisdictions a lawyer is permitted to disclose confidential information to prevent the client from committing or continuing a crime or fraud.

The professional duty of confidentiality is broader in scope and application than the attorney-client privilege. The duty applies in all setting and at all times, not only when a tribunal seeks to compel testimony. A lawyer, as an agent of the client, may not disclose or use information gained in the agency relationship to the disadvantage of the client. Agency law combines this broad prohibition with a general exception that permits disclosure when the superior interest of another exists. Because the lawyer-client relationship deals with client interests of great sensitivity and importance, such as reputation, property and freedom, the profession has justifiably concluded that a greater degree of confidentiality is required than in other agency relationships. But "the central moral tradition of lawyering" has always included a permission on the part of the lawyer to disclose confidential information in order to prevent a client crime or fraud. In addition, the dominant tradition until recently has required the lawyer to disclose confidential client information to rectify a client fraud on a third person or a tribunal when the lawyer's services were used to perpetrate the fraud.

Initially promulgated in 1908 and subsequently amended, the ABA Canons of Professional Ethics provided ethical guidelines for lawyers until replaced by the ABA Model Code of Professional Responsibility in 1970. Canon 37, after stating the default rule of confidentiality, permitted disclosure to prevent "[t]he announced intention of a client to commit a crime." Canon 29 required disclosure by a trial lawyer of perjury committed in a case handled by the lawyer. Canon 41 required a lawyer, when the client refused to act, "to rectify ... some [client] fraud or deception ... unjustly imposed on the court or a party" by "promptly informing the injured person or his counsel, so that they may take appropriate steps."

These exceptions to confidentiality were continued in the 1969 Model Code of Professional Responsibility. DR 4-101(C)(3) permitted a lawyer to reveal "the intention of his client to commit a crime and the information necessary to prevent the crime." DR 7-102(B)(1) provided:

A lawyer who receives information clearly establishing that: (1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal.

The ABA abandoned these positions partially in a 1974 amendment to DR 7-102(B)(1) that abrogated in whole or part the disclosure requirement of that rule, but the amendment was adopted in only 14 states. A broader retreat occurred in 1983 when the ABA, in recommending adoption of the Model Rules of Professional Conduct, eliminated the exceptions to confidentiality that had paralleled the crime-fraud exception to the attorney-client privilege. Disclosure was permitted to protect a lawyer's interest in defending against charges by others. However, protection of third-party interests by disclosure of confidential information was limited to two situations: fraud on a tribunal, dealt with by Model Rule 3.3(a)(4), and a limited opportunity under Model Rule 1.6(b) to disclose confidential client information "to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm."

On the central question of disclosure to prevent a client's intention to commit a criminal fraud likely to result in injury to the financial interest or property of another, state high courts have emphatically rejected the ABA position. At least 40 of the 51 U.S. jurisdictions require or permit the lawyer to disclose confidential client information in this situation.

The American Law Institute is now in the process of reaffirming the central moral tradition that a lawyer is permitted to disclose confidential client information to prevent, mitigate or rectify a client criminal or fraudulent act that has or will result in substantial financial loss to a person. The time is now ripe for the ABA, through its Commission 2000, to align its position on exceptions to confidentiality with those in effect in most American states and consistent with the profession's historical traditions.

The policies and purposes that justify the confidentiality of attorney-client privilege communications argue strongly for a permissive exception to the duty of confidentiality corresponding to the client-fraud exception of the attorney-client privilege. If a lawyer is required to testify to a client communication, otherwise privileged, when the client has sought the lawyer's advice and services to perpetrate or continue a fraud, a concomitant discretion to disclose without testimonial compulsion should be recognized under the professional duty of confidentiality. Neither the legal profession nor society as a whole should tolerate a regime in which lawyers may be used by clients as a means of carrying out a crime or fraud. Permissive disclosure in this context reinforces the lawyer's duty to provide only lawful assistance and advice to clients, giving the lawyer a last-resort weapon and increased leverage in dealing with a client embarked on a fraudulent course of conduct. Moreover, a lawyer's failure to take reasonable steps to prevent or rectify client fraud is likely to lead to civil liability of the lawyer. If insolvency and litigation occur as an aftermath of the fraud, the client's confidentiality will inevitably disappear.

While it is possible to reach the same result by expanding the self-defense exception to include a proactive rather than reactive disclosure, or to interpret the prohibition on assisting client criminal or fraudulent conduct as creating an implied exception to confidentiality, guidance to lawyers is best provided only by a forthright exception to the professional rule dealing with confidentiality. Similarly, the "noisy withdrawal" possibility buried in a comment to Model Rule 1.6 is insufficient because it is inconsistent with the text of the rule itself, which forbids disclosure; 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. Lawyers deserve more explicit guidance from rule-makers.

B. Disclosure to Prevent Death or Substantial Bodily Harm

Once a fraud exception to the professional duty of confidentiality is recognized, reinforcing the policies and purposes that justify lawyer secrecy, the remaining task is to determine whether there are other third-party interests that justify a sacrifice of confidentiality. What other interests of third persons should fall into this category? Four situations provide a vehicle for considering this question:

* The facts of the Spaulding case on the assumption that the individual defendants and their insurers refused to consent to disclosure of Spaulding's life-threatening condition. [Spaulding, a passenger in a car driven by Zimmerman, was seriously injured in a collision with another car. His action against the owners of both vehicles was settled at a conference in which the defendants did not inform Spaulding or his lawyer that a defense expert had discovered that Spaulding had suffered an additional injury, not known to them, which was life-threatening. When Spaulding later discovered the further injury, he brought suit to rescind the prior settlement. Because he as a minor at the time the settlement was approved by the court, the settlement was set aside. The decision clearly implies that it would not have been set aside if Spaulding had been an adult at the time. Spaulding v. Zimmerman, 116 N.W.2d 704 (Minn.1962)]

* A death row scenario: A client accused of an unrelated charge informs his lawyer in plausible detail that he was responsible for a murder for which an innocent, uninvolved person is awaiting execution on death row.

* The threatened collapse of a building: The client, an owner of a large commercial office building located on an earthquake fault line in a major city receives a detailed report of an architectural engineer to the effect that the building structure is inadequate to withstand even a modest earthquake. An event of this character in the location involved occurs approximately every six years. When it occurs, it is extremely likely that the building will collapse with substantial loss of life. The client ask the lawyer for advice about his options. The lawyer, after advising that no current law requires the owner to report the danger to public authorities, recommends that the client take prompt steps to inform tenants and reconstruct the building. The client, concluding that the costs of rebuilding are too great, decides to do nothing and directs the lawyer to remain silent.

* The client's violent spouse: The lawyer is defending a client whose business is at risk in commercial litigation. The client tells the lawyer that her husband, enraged at the tactics of the opposing party, plans to kill the opposing party's lawyer. The client is unwilling to consent to disclosure to the potential victim or the police even though she disagrees with her husband and has tried to calm him down.

These situations have two common features: human life is at risk in each of them and current ethics codes generally do not permit disclosure in any of them. Should ethics rules permit disclosure in these and kindred situations?

The harmful consequence "severe risk to human life" is important enough to justify an exception to the professional duty of confidentiality if the surrounding circumstances justify disclosure. Disclosure, however, should not occur unless certain predicate conditions have been established: (1) The facts known to the lawyer, after adequate inquiry and investigation, must give rise to a reasonable belief that disclosure is necessary to prevent someone's death or serious bodily injury. (2) The lawyer should consult the client about the intent to disclose unless it is not feasible under the circumstances (e.g., when the client's plausible threat to kill himself or a third person may be triggered rather than avoided by consultation). (3) No other available action is reasonably likely to prevent the threatened harm. And (4) the disclosure is limited to what is necessary to prevent the threatened consequence. Although these qualifications will not be repeated as we discuss the situations in which disclosure should be permitted, the reader should assume they have been satisfied in each instance.

The confidentiality provisions of existing ethics codes impose a number of limiting conditions that make them inapplicable to situations of the type mentioned. Existing rules generally limit disclosure to situations in which an act of the client is involved. The requirement of a client act excludes situations in which the threatened act is that of a third person, such as a spouse or associate of the client, and does not cover harm resulting from a natural event of which the client has special knowledge, as in the building-collapse scenario. The requirement may also exclude situations in which there is no affirmative act more generally, but only a failure to act or omission. Moreover, under most ethics codes, the client's act must be criminal in character.

In the scenario based on Spaulding, the client's refusal to consent to disclosure fails to meet these requirements. Even if the failure to disclose qualifies as a "client act", it does not constitute a prospective or ongoing crime or fraud. Yet the moral considerations that justify disclosure have great force in this situation. Moreover, the rarity of situations of this sort poses little risk to the overall preservation of confidentiality.

Similarly, the client's refusal to permit disclosure to save the life of an innocent person from execution does not involve a prospective client crime. Although the moral dilemma of conflicting obligations to client and third person is a difficult one, ethics rules should provide discretion to disclose when the harm to an innocent person outweighs the potential harm to the client.

In the building-collapse situation, disclosure would be prohibited under current rules because there is no client criminal act that threatens deadly harm. Indeed, there is no client act at all, only the client's special knowledge that a natural event will cause death is foreseeable and probable. The requirement in Model Rule 1.6(b)(2) that the threat be "imminent" is also not satisfied. Protection of innocent life again justifies disclosure.

Finally, in the scenario where the client's spouse plans a criminal act threatening life, existing exceptions do not apply because the client is not the actor. Yet the situation is morally identical to those in which the client is the actor, in which current ethics rules permit disclosure.

The rules governing exceptions to confidentiality should be broadened to permit disclosure in all of these situations. First, the preservation of human life clearly has as high a priority in the hierarchy of values as any other threatened consequence. Existing lawyer codes recognize the high priority of human life. But their application is unduly limited because of preconditions that are overly broad. Second, a profession that justifiably asks for and receives permission to disclose confidential client information when its own economic interests are at stake (e.g., to collect a fee from a client) cannot take the position that the threatened death or serious injury of another does not justify an occasional sacrifice of confidentiality.

C. Underlying Policy Issues

The central issues in drafting exceptions to confidentiality involve, first, defining the interests that justify a possible sacrifice of the client's interest in secrecy; second, determining whether the opportunity to disclose should be permissive or mandatory; third, determining whether limiting language concerning the actor, the victim, or the harm should be included; and third, deciding, in connection with client fraud situations, whether disclosure should be limited to situations in which the lawyer's services are or have been involved.

The major argument against broadening exceptions to confidentiality is that clients will be deterred from confiding information to their lawyers. The lack of candor on the part of clients, it is said, will make it difficult for a lawyer to give informed advice. The "sound advice" and "sound administration of justice" thought to result from this highly confidential relationship will not be achieved. Moreover, the ability of the lawyer to disclose client information may diminish client trust and adversely affect the quality of the relationship and the single-mindedness with which the lawyer pursues the client's interests. If and when the lawyer informs the client that disclosure is desirable or contemplated, a serious conflict arises between the lawyer and the client. The client feels betrayed and the relationship ends in bitterness.

The response to these arguments is several fold. First, the principal exceptions to both the professional duty and to the attorney-client privilege are longstanding and have not had the consequences that are feared. The self-defense and client-fraud exceptions involve situations that arise frequently. These historic exceptions have limited lawyer secrecy from the very beginning. There is no evidence that those broad exceptions have had undesirable effects on the candor with which clients communicate to lawyers. A modest broadening of the exceptions in situations that arise relatively rarely is unlikely to have any discernible effect.

A great deal of romanticism often surrounds discussion of "trust" and "candor" in the lawyer-client relationship. Studies indicate that mistrust and suspicion are frequently encountered in the relationship; lawyers frequently state that clients are unwilling to reveal embarrassing or sensitive facts, which need to be dynamited out of them; and factors that restrict client willingness to confide operate in various practice contexts in powerful ways. In the criminal defense field, for example, both lawyer and client may be reluctant to discuss candidly facts relating directly to guilt, since doing so may limit the options available to defense counsel.

Second, arguments that candor will be discouraged by modest rule changes ignore the fact that both lawyers and clients appear to be relatively uninformed concerning the details of exceptions to either the attorney-client privilege or the professional duty of confidentiality and the relationship of the two doctrines to one another. The available empirical evidence, albeit very limited, suggests that most lawyers and clients expect that confidentiality will be breached when important interests of third persons or courts would be impaired. Nor is there any indication that clients are more candid with their lawyers in jurisdictions that have fewer exceptions to confidentiality than they are in jurisdictions with broader exceptions. It must be conceded that there is little solid empirical evidence to support firm conclusions in either direction. Our position is that, when severe harm is threatened that can be prevented by disclosure, the reality of that more certain harm should be preferred to dubious assumptions about effects on client candor.

What types of clients are likely to be informed enough about the details of exceptions to the attorney-client privilege, the work-product immunity and the professional duty of confidentiality so that this knowledge will influence their willingness to confide in a lawyer? Our suspicion is that this group of informed clients is largely confined to sophisticated repeat-players, usually substantial corporations, who want to use lawyer secrecy to reduce their costs of complying with regulatory requirements. This group of clients has many advantages in litigation over those with less resources, experience and staying power. The policy issues concerning expectations to confidentiality should be designed with the interests of the general public in mind and not those of narrower groups that have a special interest in a broad sphere of secrecy. The social value of secrecy versus disclosure is less when one is dealing, not with individual citizens encountering law for the first time, but with repeat-player, profit-making organizations that use secrecy to conceal or delay compliance with regulatory requirements.

Third, there is no evidence that exceptions to confidentiality have led or will lead to frequent whistle-blowing on the part of lawyers. American lawyers are imbued with a professional ideology that gives dominant place to loyalty to client, treats confidentiality as a sacred trust, and abhors lawyer conduct that constitutes a betrayal of client. Lawyers know that harming a client to protect the superior interest of a third party will lead to the ending of the lawyer-client relationship, probable non-payment of fees, client bitterness and recrimination, and possible loss of repute with other lawyers and clients. Experience shows that lawyers are extraordinarily reluctant to risk these consequences. The exceptions to confidentiality should not be drafted so narrowly that this natural risk averseness is reinforced, with the result that loyalty to client, even a client who is abusing the lawyer's services to cause serious harm to third persons, always prevails over the superior interests of others.

Should exceptions to confidentiality be mandated by rule or left to a lawyer's discretion? The arguments for and against discretion are familiar. A blanket command provides more explicit guidance and, if followed by those to whom it is directed, will lead to more uniform and predictable responses. A clear duty helps avoid the problem of a client being subjected, without advance disclosure, to differing responses and risks dependent upon the judgment or conscience of individual lawyers. On the other hand, the situations that arise are often morally complex ones in which practical judgment is influenced by a variety of factors relating to context, personalities, circumstances and relationships. The clarity of the lawyer's knowledge concerning the likelihood of a client's proposed conduct and of its threatened consequences varies enormously from case to case. Wholly apart from the merits, discretionary proposals are more likely to commend themselves to lawyers who fear that mandatory disclosure will lead to civil liability for failure to disclose. For these reasons, we prefer a discretionary approach, but recognize that a strong case can be made for mandating disclosure in some situations.

D. Effect of Permissive Disclosure on the Client's Attorney-Client Privilege

It should be kept in mind that the ethical propriety of a lawyer disclosing information without the client's consent "tells us nothing about the admissibility of the information disclosed." The professional duty of confidentiality and the attorney-client privilege are separate doctrines although they have overlapping objectives. Disclosure by a lawyer in a situation permitted by the ethics rule but without the client's consent, does not waive the client's attorney-client privilege in the communication that is privileged. Although the information becomes known to those to whom it is revealed and may result in harm to the client, the client retains the right to assert the privilege in any subsequent proceeding whether or not the client is a party. In Macumber v. State, for example, a lawyer reported to public officials that his client had committed a crime for which another person had been convicted. The disclosure was viewed as ethically permissible (i.e., not in violation of the lawyer's duty of confidentiality). Nevertheless, the lawyer's testimony concerning the client's communication was not admissible in a subsequent hearing challenging the allegedly wrongful conviction. In some states, the same result may be reached under statutory provisions preventing state officials from using any evidence flowing from a breach of the attorney-client privilege.

In Purcell v. District Attorney the Massachusetts Supreme Judicial Court held that a lawyer's permissible disclosure of information that his client planned to set fire to an apartment building did not necessarily lead to the conclusion that the lawyer could be required to testify as to the client's expression of this intent in a subsequent arson trial. The client, a maintenance man with an apartment in the building, had consulted the lawyer about matters relating to loss of both job and apartment. Those communications were privileged and the privilege was not waived by the lawyer's permitted disclosure under the ethics code of the intended arson. The harder question was whether the communication concerning the threatened arson was admissible because of the crime-fraud exception to the privilege, a determination that rested on whether the client informed the lawyer of the intention to commit arson "for the purpose of receiving legal advice" concerning the unlawful conduct. On remand in Purcell, the defense lawyer was not required to testify against his client. The client's communication of the proposed arson was not one made for purposes of legal advice, unlike those relating to the client's job and housing.

As Susan Martyn has stated in commenting on the Purcell case:

Because [the court] approved of a lawyer's discretion to disclose a client intention to commit a serious future crime, it gave lawyers an added incentive to do so when efforts to dissuade the client prove unsuccessful. Lawyers who disclose this confidential information need not worry that it can be used directly against the client in a subsequent proceeding, as long as the client sought legal advice about lawful matters. A lawyer can act to save lives, and at the same time avoid being the instrument of the client's conviction. 127

E. A Proposed Confidentiality Rule

In the hope that state rule-makers will be stimulated by the ALI recommendations and that the ABA will reconsider its position, we offer a proposed confidentiality rule for consideration. Since most states have adopted some version of the Model Rules of Professional Conduct, our proposal is cast in terms employed in the Model Rules and as a complete substitute for current Rule 1.6.

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized to carry out the representation, and except as stated in paragraphs (b) and (c).

(b) A lawyer shall reveal such information when required by law or court order and to the extent required by Rule 3.3 and Rule 4.1(b).

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

(1) to prevent death or substantial bodily harm;

(2) to prevent the wrongful incarceration or execution of another;

` (3) to prevent commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in substantial injury to the financial interests or property of another;

(4) to rectify or mitigate a client fraud in which the lawyer's services have been used; and

(5) 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.

prflsm\ethics2000.confidentiality

Advertisement