Updating Confidentiality: An Overview of the Recent Changes to Model Rule 1.6

Georgetown Journal of Legal Ethics, The, Summer 2004 by Vance, Amanda, Wallach, Randi

INTRODUCTION

Just when you thought you understood the confidentiality requirements of Rule 1.6 of the American Bar Association ("ABA") Model Rules of Professional Conduct ("Model Rules"), the Rule was amended again in August 2003; this time, significantly. Although the Model Rules have been amended frequently since their initial adoption in 1983,1 Model Rule 1.6 (the Rule) remained substantially unchanged between 1983 and 2002.2 However, due in large part to the efforts of Ethics 2000,3 Model Rule 1.6 has gone through a series of changes in the past few years.

This Note will detail the changes that have occurred over the past few years, and it will explore some of the questions faced by practicing lawyers with regard to Model Rule 1.6. Section I of this Note will discuss the changes to Model Rule 1.6 over the past three years. This step-by-step overview of the changes will review how the Rule was changed, when it was changed, and why it was changed. Next, Section II of this Note will examine the benefits and drawbacks of confidentiality, the cornerstone of Model Rule 1.6. It is important to discuss the benefits and drawbacks of confidentiality generally before considering the import of the changing confidentiality requirements of Model Rule 1.6. Finally, Section III of this Note will provide an overview of the arguments for and against both the 2002 and 2003 changes to Model Rule 1.6, a look at the reasoning behind the two consecutive changes, and the possible effects of the revisions on the legal community.

I. WHAT DID THE RULE REQUIRE THEN, AND WHAT DOES THE RULE REQUIRE NOW?

A. THEN

Model Rule 1.6 has undergone a series of potentially significant changes over the past few years. The original Model Rule 1.6, as proposed by the Kutak Commission and promulgated in 1983, remained unchanged between 1983 and 2002.4 Throughout this period, the Rule read:

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

(b) 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 a 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.5

Although a proposal to change the Rule was presented to the ABA at its Annual Meeting in 1991, the House of Delegates rejected this proposal by a vote of 251 to 158.6 The proposal would have permitted a lawyer to reveal information that the lawyer reasonably believed necessary to "rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used."7 This proposal was not new to the ABA. The idea of allowing a similar exception to confidentiality in circumstances of crime or fraud was earlier brought to the House of Delegates by the Kutak Commission in 1982, before the Original Model Rules were promulgated.8 Although the exception was not added to Rule 1.6 in 1983 or 1991, it reappeared in the recommendations of the Ethics 2000 Commission.9

B. ETHICS 2000

In response to criticisms that the Model Rules were "lagging behind changes in the profession and society generally,"10 the ABA established the Commission on the Evaluation of the Rules of Professional Conduct, known as the "Ethics 2000 Commission" (Ethics 2000) in the spring of 1997." Although Ethics 2000 was tasked with updating the Model Rules in their entirety, Ethics 2000 "addressed head-on one of the most frequently criticized aspects of the Model Rules-their narrow exceptions to the duty of confidentiality."12 Ethics 2000 recommended significantly broadening the exceptions to confidentiality with the following proposed Model Rule 1.6 (the Ethics 2000 Rule):

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

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

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

(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;