Model Rule 1.6

Reporter's Explanation of Changes

Ethics 2000 Commission Draft for Public Comment

March X, 1999

TEXT:

1. Paragraph (a): Inclusion of former clients

The Commission has recommended the deletion of Rule 1.9(c)(2) (duty of the lawyer not to reveal information relating to the representation of a former client) and the incorporation of an identical duty in Rule 1.6. Rule 1.9(c)(2) is a confidentiality rule that seems to be misplaced in a series of conflict of interest rules. The misplacement is all the more evident because the duty of the lawyer under Rule 1.9(c)(2) is identical to the Rule 1.6 duty owed to current clients. No change of substance is intended.

2. Paragraph (a): Informed consent

Paragraph (a) substitutes "informed consent" of the client for "consent after consultation." The Commission has determined that "consultation" does not adequately convey the requirement that the client receive full disclosure of the nature and implications of the client's decision to authorize disclosure of confidential information. The term "informed consent" was chosen because it already has a fairly well-accepted meaning in other contexts. That term, which will then be used throughout the Rules in place of "consent after consultation," will be defined in Rule 1.4. In each Rule where the term is used, there will be a cross-reference in the Comment to the definition in Rule 1.4, as well as language in the Comment providing specialized guidance, for example, in the contexts of conflicts and confidentiality.

3. Paragraph (a): Exceptions to confidentiality

Under present Rule 1.6(b), the lawyer is permitted but not required to make certain disclosures of information otherwise protected under this Rule. The Commission recommends adding a paragraph (c), which will expressly require lawyers to disclose information when required to do so by law, by court order, or when necessary to comply with certain other Rules. Thus, it is proposed that paragraph (a) be amended to reflect that the exceptions will include disclosures permitted under paragraph (b) and required under paragraph (c).

4. Paragraph (b)(1): Reasonably certain death or substantial bodily harm

Following 117A of the Restatement, the Commission recommends that the exception presently 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. The Rule replaces "imminent""reasonably certain" because imminent is too limiting. It suggests that the harm must be likely to occur at any moment and does not include a present and substantial threat that a person will suffer such injury at a later date, as in some instances involving toxic torts.

The Commission also recommends that the exception not be limited to harm threatened by client crimes. Many jurisdictions have enacted a provision based on the former Model Code, in which the lawyer may reveal information necessary to prevent any client crime. The Commission's proposal is narrower in that it is limited to disclosures necessary to prevent death or serious bodily harm but is broader in permitting disclosures regardless of whether the harm results from a crime or even from a client's act (wrongful or otherwise). The proposal is based on the overriding value of life and physical integrity.

5. Paragraphs (b)(2) and (b)(3) : Crimes or frauds involving substantial economic harm to others

Only a few states have adopted the position taken by the Model Rules, i.e., that there are no circumstances in which a lawyer may disclose confidential information in order to prevent or rectify client wrongdoing involving substantial economic harm to others. Eight jurisdictions permit and three require disclosure when clients threaten crimes or frauds likely to result in substantial injury to the financial or property interests of another. Twenty-five jurisdictions permit and one requires a lawyer to reveal the intention of a client to commit a crime without regard to the amount or nature of the injury caused. Thirteen jurisdictions permit disclosure to rectify the consequences of a crime or fraud in which the lawyer's services were used.

The Commission recommends that a lawyer be permitted, but not required, to reveal information when necessary to prevent or rectify substantial injury to the financial or property interests of another but only when the lawyer's services have been or are being used to further a crime or fraud by the client. In both instances, use of the lawyer's services for such improper ends constitutes a serious abuse of the client-lawyer relationship by the client, thereby forfeiting the protection of the Rule. Moreover, with respect to future conduct, the client can easily prevent the harm of disclosure by refraining from the wrongful conduct.

6. Paragraph (b)(4): Securing legal advice regarding lawyer's compliance with the Rules

Considerable questions have been raised regarding the propriety of a lawyer securing legal advice regarding the lawyer's own 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 to carry out the representation. 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.

7. Paragraph (b)(5): Establishing a defense on behalf of the lawyer

No change is recommended to this exception.

8. Paragraph (c): Required disclosures

The present Rule does not state explicitly in the text that lawyers either may or are required to disclose information when such disclosure is required elsewhere in the Rules. Comment [20] 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 Comment [21] refers to other Rules requiring or permitting disclosure, as well as other law that may supersede Rule 1.6. The Commission recommends that the text of Rule 1.6 be amended to refer explicitly to such overriding obligations, recognizing them as exceptions to the rule of confidentiality. Paragraph (c) creates such an exception for disclosures required by law or court order, as well as other Rules, such as Rule 3.3.

COMMENT:

[1] This new Comment provides cross-references to Rules 1.8(b) and 1.9(c), the conflict of interest rules regarding use of information to the disadvantage of current and former clients. If the Commission approves a new rule stating a lawyer's duties to prospective clients, including a duty of confidentiality, a cross-reference to that Rule will be added.

[2] This Comment combines points made in current Comments [1] through [4] into a single Comment setting forth the rationale for the confidentiality duty.

[3] Current Comment [5] has been edited slightly to clarify that the work-product doctrine is separate from the attorney-client evidentiary privilege. Given that Rule 1.6 contains no suggestion that there might be an exception for government lawyers who might disagree with government policy, the Commission recommends the deletion of current Comment [6] as unnecessary.

[4] This new Comment reminds lawyers that the prohibition against disclosure applies even when it does reveal protected information but could lead to the discovery of such information, including the use of hypotheticals that pose an unreasonable risk that the listener will ascertain protected information.

Authorized Disclosure

[5] This Comment combines and makes minor stylistic changes in current Comments [7] and [8].

Disclosure Adverse to Client

[6] This new Comment replaces current Model Rule 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 what constitutes substantial bodily harm and when such harm is reasonably certain, providing an illustration.

[7] Except for the last sentence, which is identical to current Comment [17], this Comment is new and provides the rationale for the exception recognized in paragraph (b)(2)-disclosure to prevent future crimes or frauds threatening substantial economic harm-and also provides a cross-reference to Rules 1.2 and 1.16, which govern conduct regardless of whether the lawyer chooses to disclose information under this Rule. Having added this cross-reference, the Commission recommends the deletion of current Comments [10], [11], [12], [15], and [16].

[8] This new Comment provides the rationale for the exception recognized in paragraph (b)(3)-disclosure to rectify past crimes or frauds involving substantial economic harm.

[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.

[10] This Comment relating to the exception recognized in (b)(5)-defending against charges of lawyer misconduct-is derived from Model Rule Comment [18]. The new third sentence is taken from current Comment [19]. The deleted last sentence has been incorporated into proposed Comment [12].

[11] This Comment contains the core of current Comment [19] dealing with disclosure necessary to collect attorney's fees. The deleted second sentence has been included in proposed Comment [10], and the deleted last sentence has been incorporated into proposed Comment [12].

[12] 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 that the lawyer reasonably believes is needed to accomplish a purpose for which disclosure is permitted. It emphasizes remonstrating with the client to take appropriate action, disclosing no more than necessary, and seeking protective orders against further dissemination of the information where appropriate.

[13] This Comment tracks current Comment [14]. A new introductory sentence has been added, and the beginning of the second sentence has been revised for stylistic reasons. The two deleted sentences have been incorporated into proposed Comment [12]

Disclosure Otherwise Required or Authorized

[14] This Comment is identical to current Comment [21], except for the renumbering and the deletion of the reference to Rule 2.2, which the Commission has recommended be deleted from the Rule.

[15] This Comment modifies current Comment [20]. It has been reworded to refer to more situations in which a lawyer might be ordered to reveal confidential information and to require the lawyer to invoke all non-frivolous claims that the information is privileged. It also provides guidance when the lawyer is ordered by a tribunal in an appealable order to reveal information.

Acting Competently 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 a client's representation. Some states have retained a formulation similar to that of the ABA Model Code of Professional Responsibility DR 4-101(D). See, e.g., Michigan Rule 1.6, "A lawyer shall exercise reasonable care to prevent the lawyer's employees, associates, and others whose services are used by the lawyer from disclosing or using such information, except that a lawyer may reveal the information allowed by paragraphs (b) and (c) through such persons." Much of the recent discourse about confidentiality has focused on the lawyer's duty to act competently to prevent disclosure. The Commission believes the problem is pervasive and important and ought to be flagged in the Comment.

[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. Although authorities disagree on the need for encryption of e-mail, the Commission believes this Comment is consistent with the trend in recent ethics committee decisions.

Former Client

[18] This Comment is identical to current Comment [22], with the addition of cross-references to Rules 1.6(a) and 1.9(c).

Cross-References to Current Model Rule Comments:

[1] - [4] See proposed Comment [2].

[5] See proposed Comment [3].

[6] This Comment was deleted. See explanation in proposed Comment [3].

[7] - [8] See proposed Comment [5].

[9] This Comment was deleted. See proposed Comment [6].

[10] - [12] These Comments were deleted. See proposed Comment [7].

[13] This Comment was deleted. See proposed Comment [6].

[14] See proposed Comments [12] and [13].

[15] - [16] These Comments were deleted. See proposed Comment [7].

[17] See proposed Comment [7].

[18] See proposed Comments [10] and [12].

[19] See proposed Comments [10], [11], and [12].

[20] See proposed Comment [15].

[21] See proposed Comment [14].

[22] See proposed Comment [18].