February 2002 Report
Rule 1.6(b)(1) Los Angeles County Bar
RULE 1.6: CONFIDENTIALITY OF INFORMATION
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to prevent
reasonably certainimminent death or substantial bodily harm resulting from an unlawful act:
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(Deletions struck through; Additions underlined)
Discussion
The LACBA believes that the proposed changes to Rule 1.6(b)(1) are inconsistent with the fundamental duty of a lawyer to exercise undivided loyalty on behalf of his or her client, and that any confidentiality exceptions extending beyond those necessary to prevent imminent death or serious bodily injury caused by the criminal act of the client will interfere with the ability of lawyers to fulfill their role as counselors and advisors. We believe that without a free and unguarded flow of information from a client, a lawyer cannot advise and guide a client towards more ethical alternatives, and cannot competently fulfill the lawyer’s role as advocate. Consistent with the duty of undivided loyalty, we believe that clients are likely to withhold from their lawyers information that clients think will be harmful or embarrassing if they suspect that their lawyers will use that information for any purpose other than to further the interests of a client.
Much of this proposal was brought before the ABA House of Delegates as part of the original Model Rules of Professional Conduct in 1983. The LACBA joined with other bar associations in opposing the expansive exception to attorney-client confidentiality then proposed, and prevailed in the House of Delegates in adopting the language presently contained in Rule 1.6(b)(1). A very similar proposal was also defeated in the House some ten years ago.
The role of a lawyer as a counselor and advocate is not consistent with serving as a law enforcement official or as the arbiter or enforcer of social norms. We do not believe that lawyers should accept confidential information from clients, ostensibly for the purpose of providing them with confidential counsel, only to disclose that information to others if, in the lawyer’s unilateral judgment, the client might do or has done something wrong. Lawyers should not be permitted to act as judge, jury, or prosecutor regarding the conduct, threatened conduct, or perceived possible conduct of their clients. The mere possibility of such disclosure destroys the relationship of trust and confidence that forms the basis for an effective lawyer-client relationship -- the kind of relationship in which lawyers obtain the information needed to know when a client has or is about to step over a legal or ethical line -- so that it is possible to present to the client a range of alternative courses of action and their risks and costs.
We understand and approve the goal of increasing compliance with law and deterring illegal and dangerous practices. But we do not think that permitting lawyers to reveal confidential information is a desirable or effective means for attaining that goal. To the contrary, we believe that the duty of confidentiality increases compliance with law and reduces the burden on the judicial system.
We accept a limited exception for the criminal act of a client that will cause imminent death or serious bodily injury. Imminence is crucial, because then the lawyer’s disclosure might be the only possible means of preventing the criminal act. Otherwise, when a client’s past or future conduct is likely to cause death or serious bodily harm in the future -- such as through toxic waste (as posited by the commentary) -- there are other means to address that issue. In that situation, the polluter’s conduct might become known in other ways, such as if one of the polluter’s employees chooses to reveal the polluter’s conduct. If lawyers are permitted to disclose information about toxic pollution that they receive in confidence, then polluters will simply stop seeking legal advice on that topic. When that happens, society will lose the benefit of having a lawyer advise the polluter of the legal and ethical implications of continuing the illegal pollution.
We believe that there are three additional and fundamental points that the proposal does not consider. First, there is a risk of harm to the client if the lawyer is mistaken as to the facts or their consequence and discloses confidential information based on that mistaken belief. Second, there is a similar risk of harm to others including, for example, shareholders of publicly owned corporations, and a related risk of violating the securities laws. Third, the disclosures that would be authorized by the proposed revisions might violate other provisions of law. For example, California Health & Safety Code § 120980 makes it a crime in certain situations to disclose the results of an HIV test.
In fact, the proposed revision is so broad that it would permit an attorney with a grudge or with a policy goal to obtain information from a client for the purpose of causing public embarrassment and financial harm. While the proposal presupposes the discovery of information by an innocent attorney, it might well cloak malicious acts by an attorney acting in bad faith. For this reason, also, the proposal is fundamentally flawed.
Proposed Rule 1.6(b)(1) would permit the lawyer to reveal confidential information "to prevent reasonably certain death or substantial bodily harm." This exception would apply to lawful businesses as well as criminal activities and would appear to destroy any attorney-client privilege if the lawyer believes that the lawful acts or omissions of the client contribute to or accelerate death or substantial bodily harm. This would mean, for example, that there could be no reasonable basis for a belief in a duty of confidentiality on the part of lawyers who represent tobacco companies, gun manufacturers, chemical companies, and others who in the climate of the day might be involved in controversial activities. The same logic applies to any person or business involved in life and death activities that might not at first seem to be controversial, such as hospitals, physicians, HMOs and other health care providers, health insurance companies, pharmaceutical manufacturers, manufacturers and repairers of automobiles, airplanes and other means of transportation, the airline industry, the trucking industry, and countless others.