TO: ABA Commission on Evaluation of Rules of Professional Conduct:
FROM: David L. Praver
RE: Proposed Revised Rule 1.6 - - - Draft No. 6
I am a former Chair of the California State Bar of Governor's Committee on Professional Responsibility and Conduct ("COPRAC") and the co-found and co-chair of the Ventura County Ethics and Professional Responsibility Committee. I am submitting these comments on behalf of the Ventura County Ethics and Professional Responsibility Committee and my comments as contained herein, are not necessarily the opinions of the Ventura County Bar Association.
The Ventura County Ethics and Professional Responsibility Committee urges the Commission to disapprove Draft No. 6 of proposed revised Rule 1.6.
Common law has recognized the importance of the sanctity of the attorney client relationship. Traditionally, lawyers have held inviolate the trust and confidence of the client on all matters including disclosures of prior acts or omissions, as well as confidences relating to potential future conduct. The policy considerations which are the fundamentals for requiring lawyers to preserve the client's secrets and confidences, as well as confidential communications, are not outweighed by the policy considerations behind the revisions to Rule 1.6.
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.
The Committee recognizes that in certain instances, disclosure of confidential information may be morally called for to protect someone from imminent and significant physical harm. However, adopting a rule that allows or requires disclosure in what would be an extremely rare instance, will cause the deterioration of the foundation of the attorney client relationship which should be preserved in the vast majority of cases.
The Committee opposes permitting or requiring attorneys to breach the confidential relationship to disclose confidences that may have detrimental financial or emotional consequences to a third person or entity.
Adoption of proposed Rule 1.6 would require an independent review of the attorney's conduct to determine if it was reasonable for the attorney to conclude that a third party was, or was not, at risk, physically, financially or emotionally. Each "reporting" or failure to report, would have to be separately analyzed based on the facts and circumstances known to the attorney at that time. The process would be cumbersome and expensive and puts the attorney in the position of having to assess the client's mental health; a profession we are not trained in.
The better rule is that the attorney cannot disclose the client's confidences and secrets obtained from any source, as well as the confidential communications from the client, without the client's informed written consent.
The Ventura County Ethics and Professional Responsibility Committee urges that proposed Rule 1.6 not be adopted.