February 12, 1999
Professor Nancy Moore
ABA Commission on Evaluation of the
Rules of Professional Conduct
541 No. Fairbanks Street, 14th Floor
Chicago, IL 60611
Re: Comment on Rule 1.6
Dear Chief Justice Veasey, members of the Commission, and Professor Moore:
This letter should be considered an accompaniment to the oral comments of Richard Zitrin made before the Commission February 4, 1999 in Century City. Please consider this both as a comment on draft #7, and as a public comment to the rule, as we understand it was approved in a similar form for public comment on February 5.
We write in our capacity as representatives of Advisory Council members the University of San Francisco School of Law, where we both teach Legal Ethics, and the University of California, Hastings College of the Law, where we each teach Professional Responsibility. By way of further identification, we were consecutively chairs of the State Bar of California Committee on Professional Responsibility and Conduct from 1994 to 1996, and are co-authors of two books on legal ethics, Legal Ethics in the Practice of Law (Lexis Law Publishing, 1995) and The Moral Compass of the American Lawyer (Ballantine, May 1999). The views expressed in this letter are our own.
We commend the Commission for its draft of Rule 1.6. We believe that the Commission has done an excellent job of tight-roping between a rule that would too widely abrogate lawyer-client confidentiality, and one that is overly and unrealistically restrictive. Specifically:
(1) The elimination of the words "criminal" and "imminent" from section (b)(1) of the rule focuses, as it should, on the end result of the client's likely conduct, and not an analysis of the collateral questions of how that conduct is properly categorized. As our comments to the Commission in May 1998 articulate (see testimony of Ms. Langford), a course of conduct of a client should not turn either on its being "criminal" or on the resulting harm being "imminent".
(2) To underscore this second point, you have wisely added language to paragraph 10 of the Comment that clearly explains the effect of ongoing, substantial risk "at a later date". We believe that this language may be your most important change, strongly agree with it, and commend you for it.
(3) The choice of an objective or subjective standard in (b)(1) will garner criticism either way. No one, including us, can be certain of the value of your change. On balance, however, we lean toward the view that removing the lawyer's belief affords better protection for both lawyer and client.
(4) We also agree with the Commission's addition of "noisy withdrawals" in (b)(2) and (b)(3). It is time to return to the principles articulated in the first Kutak Commission draft, now largely embodied ABA Formal Opinion 92-366. It must be pointed out that, wisely, the entirety of section (b), including the disclosure here, remains permissive, not mandatory. This creates the proper balance of discretionary disclosure.
(5) We further agree with the important addition of (b)(4) and the addition of Comment paragraph 14. Our practices both involve dozens of calls a year of this nature, where the lawyer herself or himself may be at odds with the client, such that there is not even an arguable implied authorization to reveal. It may, for example, relate to the (b)(1) situation. It is imperative for lawyers to understand that they have a safe harbor to discuss important ethical issues with their own counsel. Often, we can help lawyers find solutions that both protect the lawyer and the client's confidentiality. Absent the help of a knowledgeable expert, however, lawyers may simply not have the experience or knowledge to do this themselves.
The January 1999 Professional Responsibility section meeting of the Association of American Law Schools focused on "the ethics of ethics consulting". Professor Moore moderated this section, and Richard Zitrin was one of the panelists. The importance of the inclusion of (b)(4) in this Commission's draft was underscored by that discussion, given the widespread general agreement that such consultations should specifically be permitted. Some lawyers will be reluctant to assume that such consultation is allowed without the imprimatur of a rule. This section prevents against a chilling effect on these lawyers seeking needed advice.
(6) Part (c) should be included but drafted more narrowly. While we agree with the inclusion of this section in the rule, we also agree with those who expressed the view that the lawful order should be a final court order. We would change the black letter rule to so reflect, and also substantially strengthen the duties set forth in the Comment paragraph. A lawyer should be required to resist disclosure until such time as a final adjudication of the legality of the court order is made. The most recent example of the significance of resistance is the Swidler & Berlin case. Imagine the dangerous consequences should lawyers accept uncritically the orders of all trial courts to reveal confidences. We think substantially more should be required. There is some precedent for this is California; we commend the Commission's attention to Roberts v. Superior Court, 9 Cal.3d 330 (1973) which, though it deals with a physician rather than a lawyer, articulates valuable principles about the duty to resist a trial court's order to reveal confidences until that order can be tested.
Richard A. Zitrin Carol M. Langford