Irma S. Russell Re: Proposed Revisions to Model Rule 1.6 - Center for Professional Responsibility

MEMORANDUM

TO: Ethics 2000 Commission

FROM: Irma S. Russell

DATE: February 9, 2001

RE: Proposed Revisions to Model Rule 1.6

One of the most dramatic of the proposed revisions is found in Model Rule 1.6 on confidentiality. The revisions to 1.6 make the Model Rules more consistent with the ethics rules adopted by most jurisdictions of licensure. The proposed changes to Model Rule 1.6 also make the rule more consistent with the rule on confidentiality drafted by the Kutak Commission and with the Restatement (Third) of the Law Governing Lawyers. The proposed rule permits disclosure of client information in limited circumstances of exigency. One Comment to the Rule draws an example from the environmental arena, noting that a lawyer may reveal a client's accidental discharge of toxic waste into a town's water supply "if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer's disclosure is necessary to eliminate threat or reduce the number of victims".

The proposed rule, like the current rule, creates a broad prohibition against disclosure, stating flatly that a lawyer "shall not reveal information relating to the representation of a client" without consent of the client. Thus, the rule reaffirms the legal profession's commitment to the principle of confidentiality. It retains the broad scope of the current rule; the universe of information protected is all information relating to a client. The proposed rule creates six exceptions to this broad prohibition, adding additional situations in which disclosure is permissible. Like the current rule, all exceptions provided are permissive rather than mandatory. While the proposed rule creates additional bases for disclosure, it allows disclosure only in situations in which a client has no rightful expectation of confidentiality.

The first exception allows disclosure "to prevent reasonably certain death or substantial bodily harm". This provision changes the current rule to allow disclosures in circumstances of peril without a finding by the lawyer that the client conduct is a crime. Additionally, this changed exception does not require that the death likely to occur be imminent. The importance of protecting individuals from serious bodily harm or death overrides the client's interest in privacy. One's right to privacy and expectation of confidentiality should not extend to create a right to harm others. Allowing or encouraging lawyers to remain silent in the face of peril to others is against public policy. Moreover, in some circumstances refusal to disclose may violate a statutory duty of the lawyer and the client (such as reporting requirements of environmental law or securities law) or a common law duty to warn (such as that recognized in the Tarasoff case in the context of mental health professionals) or to refrain from conduct that creates an unreasonable risk of harm to another. Additionally, disclosure is currently allowed for lawyer self-defense. The interest of lawyers in being able to defend themselves and make disclosures necessary to do so should not be accorded more weight than the right of other individuals to be free from threat of death or serious bodily harm.

The second exception allows disclosure necessary to prevent "substantial injury to the financial interests or property of another". This permissive disclosure is allowed only when the conduct of the client is a crime or fraud and, additionally, the client "has used or is using the lawyer's services" in furtherance of that crime or fraud. Although this exception expands the basis for disclosure, it does so 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. In such cases, the client has abused the use of the lawyer's services.

The third exception allows disclosure to "mitigate or rectify substantial injury to the financial interests or property of another". Like exception two, this exception requires both culpable client conduct (a crime or fraud) and, additionally, the use of the lawyer's services to further the crime or fraud. The difference between exception two and three is that exception two allows disclosure to prevent the harm and exception three allows disclosure to mitigate or rectify the harm.

The fourth exception allows disclosure to "secure legal advice about the lawyer's compliance" with the Model Rules. This section is of great importance in today's complex legal world. Lawyers sometimes need to seek advice in order to comply with the Model Rules or with laws imposing obligations upon them. Arguably, this exception currently exists as a matter of common law right of the lawyer although it is not mentioned in the current Model Rules.

The fifth exception of the proposed rule retains the language of the current rule, allowing a lawyer to reveal information necessary to establish a claim or defense. This provision is non-controversial.

The sixth exception created by the proposed rule is permissive disclosure "to comply with other law or a court order". This exception should be non-controversial. It simply acknowledges that in the case of other law the ethics rule may give way and allow the disclosure. As Comments 20 and 21 to the proposed rule indicate, the legal issue of whether particular law requires disclosure is a matter of law rather than a matter of ethics to be determined under the Model Rules. Accordingly, the rule should acknowledge the importance of other law in this area.

The abrogation of the bar of privity, which allows non-clients to sue lawyers, and the expansion of tort liability against professionals make consideration of the lawyer's duty to disclose crucial for risk assessment purposes. The suggested revisions strike a reasoned balance between the client's need for confidentiality and the right of other people to life and physical integrity. The rule strikes the balance in favor of the interest of individuals to maintain life and bodily integrity. In extreme cases of use of the lawyer's services to commit a crime or fraud, the rule allows disclosure to prevent "substantial injury to financial interest or property" or to mitigate or rectify such injuries. The rule also recognizes the necessary right of lawyers to seek legal advice and the possibility that securing such advice may require disclosure of some client information. Finally, the rule acknowledges that other law, such as a court order or a statute, may require that a lawyer reveal client information.

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