Reporter's Explanation of Changes
The Commission is proposing a substantial expansion of the grounds for permissive disclosure under Rule 1.6. While strongly reaffirming the legal profession's commitment to the core value of confidentiality, the Commission also recognizes the overriding importance of human life and the integrity of the lawyer's own role within the legal system. In this regard, the Commission agrees with the substantial criticism that has been directed at current Rule 1.6 and regards the Rule as out of step with public policy and the values of the legal profession as reflected in the rules currently in force in most jurisdictions.
As revised, Rule 1.6 will permit (though it will not require) disclosure to prevent death or substantial bodily harm and to prevent or rectify substantial injury resulting from a client's serious abuse of the lawyer's services. It will also explicitly permit a lawyer to disclose confidences to obtain legal advice about the lawyer's compliance with the Rules. Finally, it will permit disclosure where it is required by a law or court order. In light of these substantial changes to Rule 1.6, the Commission has both reorganized and substantially revised the Comments.
TEXT:
1. Paragraph (a): Replace "consents after consultation" with "informed consent"
The Commission is recommending that throughout the Rules the phrase "consent after consultation" be replaced with "gives informed consent," as defined in Rule 1.0(e). No change in substance is intended.
2. Paragraph (b)(1): Modify to permit disclosure to "prevent reasonably certain death or substantial bodily harm"
The Commission recommends that the exception currently recognized for client crimes threatening imminent death or substantial bodily harm be replaced with a broader exception for disclosures to prevent reasonably certain death or substantial bodily harm, with no requirement of client criminality. This change is in accord with Section 66 of the American Law Institute's Restatement of the Law Governing Lawyers. The Rule replaces "imminent" with "reasonably certain," to include a present and substantial threat that a person will suffer such injury at a later date, as in some instances involving toxic torts.
3. Paragraph (b)(2): Add paragraph permitting disclosure to prevent client crimes or frauds reasonably certain to cause substantial economic injury and in which client has used or is using lawyer's services
The Commission recommends that a lawyer be permitted to reveal information relating to the representation to the extent necessary to prevent the client from committing a crime or fraud reasonably certain to result in substantial economic loss, but only when the lawyer's services have been or are being used in furtherance of the crime or fraud. Use of the lawyer's services for such improper ends constitutes a serious abuse of the client-lawyer relationship. The client's entitlement to the protection of the Rule must be balanced against the prevention of the injury that would otherwise be suffered and the interest of the lawyer in being able to prevent the misuse of the lawyer's services. Moreover, with respect to future conduct, the client can easily prevent the harm of disclosure by refraining from the wrongful conduct. See also Comment [7].
Support for the Commission's proposal can be found in the eight jurisdictions that permit disclosure when clients threaten crimes or frauds likely to result in substantial injury to the financial or property interests of another and the 25 jurisdictions that permit a lawyer to reveal the intention of a client to commit any crime. The Commission's proposal is also in accord with Section 67 of the American Law Institute's Restatement of the Law Governing Lawyers.
4. Paragraph (b)(3): Add paragraph permitting disclosure to prevent, mitigate or rectify substantial economic loss resulting from client crime or fraud in which client has used lawyer's services
The rationale for this exception is the same as that for paragraph (b)(2), the only difference being that the client no longer can prevent disclosure by refraining from the crime or fraud. See also Comment [8]. The Commission believes that the interests of the affected persons in mitigating or recouping their substantial losses and the interest of the lawyer in undoing a wrong in which the lawyer's services were unwittingly used outweigh the interests of a client who has so abused the client-lawyer relationship. Support for the Commission's proposal can be found in the 13 jurisdictions that permit disclosure to rectify the consequences of a crime or fraud in the commission of which the client used the lawyer's services. The proposal is also in accord with Section 67 of the American Law Institute's Restatement of the Law Governing Lawyers.
5. Paragraph (b)(4): Add paragraph permitting disclosure to the extent necessary to secure legal advice regarding lawyer's compliance with Rules
Questions have been raised regarding the propriety of a lawyer revealing confidential information in order to secure legal advice regarding the lawyer's obligations under the Rules, including the lawyer's duty not to counsel or assist clients in crimes or frauds. In most instances, disclosing information to secure such advice is impliedly authorized. Nevertheless, in order to clarify that such disclosures are proper even when not impliedly authorized, the Commission recommends that such disclosures be explicitly permitted under this Rule. It is of overriding importance, both to lawyers and to society at large, that lawyers be permitted to secure advice regarding their legal obligations. Moreover, clients are adequately protected by the requirement that such disclosures be made only when protected by the attorney-client evidentiary privilege. See also Comment [9].
6. Paragraph (b)(6): Add paragraph permitting disclosure to comply with law or court order
The current Rule does not address whether lawyers are permitted or required to disclose information when such disclosure is required by other law or a court order. Current Comment [20], however, states that a lawyer must comply with the final orders of a court or other tribunal requiring the lawyer to give information about the client, and current Comment [21] refers to other law that may supersede Rule 1.6. The Commission recommends that the text of Rule 1.6 be amended to explicitly permit, but not require, disclosure to comply with law or court orders. No change in substance is intended. See also Comments [12] and [13].
COMMENT:
[1],
[2] and
[3] The points made in these Comments have been incorporated into Comment [2]. No change in substance is intended.
[1] This new Comment provides cross-references to the other Rules that protect clients, prospective clients and former clients against the disclosure or adverse use of information relating to the representation.
[2] This modification of current Comment [4] combines material in current Comments [1] through [4] into a single Comment setting forth the rationale for the confidentiality duty. No change in substance is intended.
[3] Current Comment [5] has been edited slightly to clarify that the work-product doctrine is separate from the attorney-client evidentiary privilege. No change in substance is intended.
[6] Given that Rule 1.6 contains no suggestion that there might be an exception for government lawyers who disagree with government policy, the Commission recommends the deletion of current Comment [6] as unnecessary.
[4] This new Comment reminds lawyers that the prohibition applies even when the disclosure does not itself reveal protected information but could lead to the discovery of such information, including the use of a hypothetical that poses an unreasonable risk that the listener will ascertain protected information. No change in substance is intended.
[5] This Comment combines and makes minor stylistic changes to current Comments [7] and [8]. No change in substance is intended.
[6] This new Comment replaces and modifies current Comments [9] and [13]. It states the rationale for the exception recognized in paragraph (b)(1) - disclosures to prevent reasonably certain death or substantial bodily harm. It also explains when such harm is reasonably certain, providing an illustration.
[10],
[11],
[12],
[14],
[15] and
[16] The substance of these Comments has been included in various new Comments. The caption "Withdrawal" has also been deleted.
[7] Except for the last two sentences, which are identical to current Comment [17], Comment [7] is new and provides the rationale for paragraph (b)(2) - disclosure to prevent future crimes or frauds threatening substantial economic harm. It also provides a cross-reference to Rules 1.2 and 1.16, which govern the lawyer's conduct regardless of whether the lawyer chooses to exercise the lawyer's discretion to disclose.
[8] This new Comment provides the rationale for the exception recognized in paragraph (b)(3) - disclosure to prevent, mitigate or rectify substantial economic loss resulting from a client's past crimes or frauds in the furtherance of which the client has used the lawyer's services.
[9] This new Comment provides the rationale for the exception recognized in paragraph (b)(4) - securing confidential legal advice about the lawyer's personal responsibility to comply with the Rules.
Caption The caption has been deleted as no longer necessary.
[10] This Comment relating to paragraph (b)(5), disclosure permitted to defend against charges of lawyer misconduct, is derived from current Comment [18]. The new third sentence is taken from current Comment [19]. The deleted last sentence has been incorporated into Comment [14]. No change in substance is intended.
[11] This Comment contains the core of current Comment [19] that addresses disclosure necessary to collect a lawyer's fees. The deleted second sentence has been included in Comment [10] and the deleted last sentence has been incorporated into Comment [14]. No change in substance is intended.
[12] This new Comment addresses the lawyer's responsibilities when the lawyer is faced with other law that may require disclosure of information relating to a client's representation. This issue is cursorily discussed in current Comment [21]. Although recognizing that paragraph (b)(6) permits disclosure to comply with other law, this Comment emphasizes the lawyer's duty to consult with the client to the extent required by Rule 1.4. No change in substance is intended.
[13] This new Comment addresses the lawyer's responsibilities when the lawyer is faced with a court order requiring disclosure of information relating to a client's representation or is called to testify concerning a client. This issue is addressed in current Comment [20]. Although recognizing that paragraph (b)(6) permits disclosure to comply with a court order, this Comment requires the lawyer, absent the client's informed consent to the contrary, to invoke all nonfrivolous claims that the information is privileged and to consult with the client about the possibility of appealing an adverse ruling. No change in substance is intended.
[14] Combining points made in current Comments [14], [18] and [19], this new Comment explains the Rule 1.6(b) requirement that disclosure be limited to information the lawyer reasonably believes is needed to accomplish the purpose for which disclosure is permitted. It emphasizes remonstrating with the client to take appropriate action, disclosing no more than necessary and, where appropriate, seeking protective orders against further dissemination of the information. No change in substance is intended.
[15] This new Comment incorporates the substance of current Comment [14]. A new introductory sentence has been added, and the beginning of the second sentence has been revised for stylistic reasons. The last two sentences provide a cross-reference to other Model Rules that may require disclosure.
Caption This caption has been deleted because current Comments [20] and [21] have been deleted.
[20] and
[21] Current Comments [20] and [21] have been deleted because these matters are now discussed in Comments [12] and [13].
Caption This new caption has been added to call attention to the two new Comments that discuss the requirement that lawyers act competently and diligently to preserve confidentiality.
[16] This new Comment cross-references Rules 1.1, 5.1 and 5.3, calling attention to the responsibility of the lawyer to act competently to safeguard information relating to the representation. A number of states have retained the formulation of ABA Model Code of Professional Responsibility DR 4-101(D), "A lawyer shall exercise reasonable care to prevent the lawyer's employees, associates and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee." Much of the recent discourse about confidentiality has focused on the lawyer's duty to act competently to prevent disclosure. The Commission believes this issue is important and ought to be flagged in the Comment. No change in substance, however, is intended.
[17] This new Comment addresses the lawyer's duty of care when transmitting confidential information. Although much of the current debate concerns the use of unencrypted e-mail, the Comment speaks more generally in terms of special security measures and reasonable expectations of privacy. It takes a case-by-case approach to the problem. The Commission believes this Comment is consistent with the prevailing resolution of this issue in recent ethics committee decisions.
[18] This comment is identical to current Comment [22], with the addition of cross-references to Rule 1.9(c)(1) and (2).
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