revision to ABA Rule 1.6 and the conflicting duties of the lawyer to both the client and society, The

Georgetown Journal of Legal Ethics, The, Summer 2003 by Casey, Patrick T, Dennison, Richard S

An advocate, in the discharge of his duties, knows but one person in all the world, and that person is his client.

Lord Brougham

The first duty of law is to keep sound the society it serves.

President Woodrow Wilson

INTRODUCTION

Confidentiality is considered one of the most vital and fundamental attributes of the attorney-client relationship. As Ramon Mullerat stated at the ABA Ethics 2000 Commission Public Hearing on February 10, 2000, "of all the ethical values, probably none is more important than the principle of client confidentiality."3 Yet, it has long been recognized that there are certain exceptions to this confidentiality where the interests of society outweigh the interests of the client. The former Rule 1.6 of the ABA Model Rules of Professional Conduct (Former Rules) has, since 1983, allowed only very narrow circumstances which may permit a lawyer to reveal confidential information.4

This Note will discuss the changes Rule 1.6 has, and has not, undergone since Ethics 2000 and some of the debate surrounding these changes. Part I will deal with the exceptions to confidentiality under the Former Rules and compare and contrast them with the revision of the ABA Model Rules of Professional Conduct (Revised Rules). Part II will analyze the changes accepted to Rule 1.6(b)(1) and the changes to Rule 1.6(b)(2) and 1.6(b)(3) that were proposed, but ultimately rejected. Part III will set forth the reasons for the Commission's recommended changes and the House's ultimate decisions to accept or reject those proposals. In particular, the Note will focus on the conflict of the lawyer's duties to the client and the lawyer's duties to society. Finally, the Note concludes with a brief discussion of what affect, if any, the newly-accepted changes may present to the attorney striving to serve the interests of the client and society alike.

I. RULE 1.6: THEN AND Now

Among the most significant developments of the Revised Rules are changes to Model Rule 1.6. A brief comparison of the old and new versions of the rule will highlight exactly what has been added, removed or simply relocated.

A. THE FORMER RULE 1.6

Under the Former Rules, a lawyer was strictly forbidden from revealing information that was related to representation of a client without explicit and informed consent from the client or implied authorization to disclose so that a lawyer may effectively carry out the representation.5 However, the Former Rules recognize two circumstances in which a lawyer may exercise discretion and choose to reveal otherwise confidential information. Former Rule 1.6(b) states:

A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or

(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.6

It is important to note that even under these exceptional circumstances a lawyer is not required to reveal any information but simply "may."7

B. REVISED RULE 1.6

Under the Revised Rules, Rule 1.6(a) has undergone some relatively minor linguistic changes that serve only to simplify and clarify its previous meaning.8 Revised Rule 1.6(b), on the other hand, shows some substantial differences from the previous version. First, the modification to Rule 1.6(b)(1) is a truly significant change. The Revised Rule reads:

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:9

(1) to prevent reasonably certain death or substantial bodily harm.10

Absent are the words "criminal" and "imminent," which formerly made this exception more narrow." The new rule offers lawyers wider latitude to decide whether to reveal information where others are in serious danger.12 This greater latitude recognizing an "overriding value of life and physical integrity" as compared with the value of strict lawyer-client confidentiality.13

Second, the Commission proposed two further exceptions in Rule 1.6(b)(2) pertaining to situations in which a client was committing or had committed financial fraud with the assistance of the lawyer's services.14 Under these proposed exceptions, a lawyer may reveal information to the extent necessary:

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services.15