The responsibility of a lawyer to preserve the confidence of his or her client is central to our profession and our legal system. The application of the law on privilege is a wide subject.
Here it is discussed narrower issue as to whether the codes of ethics that prohibit the disclosure of client secrets should be relaxed in the interests of greater public safety. We discuss particular instances in which the lawyer faces this ethical problem and give suggestions for a proper answer.
The policy consequences of forcing a lawyer to make such disclosures cannot be overlooked. For example, who should the lawyer contact and what role might the lawyer play in any potential proceedings against the client? What is the responsibility of the lawyer to warn the client before making the disclosure? Are there limitations to the advice that a lawyer should provide to the client in this context? If the rule was extended to include possible financial harm, as some have suggested, what effect would it have on ordinary and customary forms of competition? Will a lawyer who has agreed to make a disclosure for the protection or benefit of others be required to testify against his or her client in future civil or criminal proceedings?
The current Model Rule and the proposed amendment
The American Bar Association is now heading to the middle of this discussion. The ABA Ethics 2000 Commission has drawn up a proposal to update Model Rule 1.6 in order to represent a national standard that would have the effect of allowing the disclosure of client secrets in a much wider range of circumstances. The ABA Model Regulations are merely advisory. However, this particular proposed revision illustrates the trend in more than 41 states to make it easier for lawyers to report client confidences in the absence of proof of imminent death or serious bodily harm. The proponents of these reforms want the lawyers to reveal client confidences in order to discourage the client from committing a crime or fraud, even though the damage is not immediate or definite.
On the other hand, states such as California place an obligation on lawyers to “keep the trusts inviolate, and at every risk to themselves, to preserve the secrets of their client.” Critics of the proposed new rules claim that expanded disclosure requirements would weaken the confidence that is central to the client-law partnership. Others claim that some clients would avoid obtaining legal counsel, making it more difficult for attorneys to convince clients to abandon plans that may result in physical or financial damage to others.
Under the new edition of Model Rule 1.6, there are two exceptions under which a lawyer cannot reveal confidential information without the consent of the client:
– To discourage a client from committing a criminal act that the lawyer claims is likely to result in imminent death or serious bodily harm.
– In self-defense when, for example, a lawyer is sued by a third party or a client, or a lawyer is charged with a crime.
The proposed amendment to subsection b(1) would extend these exceptions in three very significant ways. First, to discourage a client from committing a crime or fraud that is fairly likely to result in serious harm to another, and the client proposes to use the services of a lawyer in connection with a crime or fraud. Second, where the client has committed fraud or crime, used the services of the attorney to further the wrongful conduct, and by disclosure, the attorney may minimize or correct the harm to another. Third, a lawyer should receive legal advice on what to do to comply with any ethical rule.
In fact, there is no requirement that possible harm is imminent. The proposed rule would allow disclosure if the lawyer is fairly confident that such damage will occur in the future if the lawyer fails to take steps to stop it. It is also expected that disclosure requirements may occur more in the lives of civil litigators, such as those serving clients in hazardous waste cases. In this situation, many advocate for a policy that allows clients to trust their lawyers and seek counsel that can support public safety. Others insist that the risk in environmental cases could be too high to allow lawyers to “quietly deal with the problem.”
The idea of adding the danger of “financial injury,” which takes the law well away from the normal “death or serious bodily harm” provision, is also being addressed. This plan goes far beyond the conventional exemption that aims to shield someone from death or severe bodily injury. Financial damage, by its nature, has never been of the same value as physical harm. However, it is impossible that the law will be formulated to avoid requiring the disclosure of client trust in almost any business activity or litigation background.
The Plan to Do Mistakes
If a client told his attorney that he had bought a gun and wanted to use it that night to kill his wife, there would be no doubt that the attorney could ethically reveal that information to the police. In the case of the crime/fraud exception to the right of the attorney-client, it is similarly predictable that the attorney will be called to testify against the former client.
However, the majority of client disclosures are not that direct. The investigation thus continues. The lawyer must exercise “professional discretion” as to the manner and extent of the disclosure. Clearly, the attorney cannot support or counsel the client in the commission of the crime. The attorney must restrict the disclosure to what is reasonably appropriate to deter a crime. In addition, if a lawyer learns that he or she has given advice that actually enabled the commission of a crime, he or she has no obligation of disclosure. It is very difficult for a lawyer to know with certainty whether the client will actually carry out the strategy mentioned. The client may have a change of mind or the lawyer may be able to convince the client not to take action.
The exercise of discretion by lawyers includes consideration of factors such as the essence of the lawyer’s relationship with the client and with others who may have been harmed by the client, the role of the lawyer in the transaction, and factors that may prolong the conduct in question.
The Fugitive
Few civil litigation attorneys face an ethical problem as to whether or not they report to the authorities the whereabouts of their fleeing clients. The spread of “white collar” crimes, especially in the area of intellectual property rights, can change that for some practitioners. One commentator argues that the best view is that a lawyer will continue to represent a client, provided that a lawyer does not become a victim of a crime. The other view is that the mere act of flight is a “continuous crime,” which causes an ethical duty of disclosure. Another point to remember is whether “continuing crime” presents a risk to others. If the lawyer believes that the client poses a risk of serious injury to others, we shall return to the provisions of Model Rule 1.6 and similar State laws.
Another recourse open to the attorney is to obtain a court order ordering the disclosure or confirming the right of the attorney to claim the client’s privilege on behalf of the client. Nevertheless, this could give rise to more ethical issues, including a conflict of interest, where the lawyer stands before the court as both the client’s representative and the possible informant requesting guidance.
Customer trust in the image of the insurer and the insured
Insured individuals also notify the defense attorney retained by the insurer of information that may restrict or refuse coverage. The defense attorney specifically represents the insured and the law against disclosure of the client’s trusts clearly applies. It is also the responsibility of the defense attorney to collect evidence and make prompt reports to the insurer. In this case, the lawyer has three options: (1) disclosure to the insurer, (2) removal, or (3) continued representation of the insured without disclosure to the insurer.
One commentator argues that if the relevant state law considers the lawyer to have two clients, the probable outcome is that the lawyer may have a conflict of interest that cannot be revealed and a withdrawal from the representation is required. Theoretically, this could be prevented if the consumer consented to the disclosure. However, in order to receive that consent, the lawyer will have to provide the client with a full clarification of the implications of consent. It should be remembered that there is no tacit agreement in these cases.
Withdrawal from representation tends to be the best course of action, but this approach often poses issues. What is the solicitor to notify the insurer about the reasons for a sudden withdrawal from the ongoing litigation? A vague reference to “ethical problems” could warn the insurer to further investigate the finding.
Conclusion
The strong trend is to extend the conditions in which a lawyer would be forced to report client trusts. However, amendments to ABA Model Rule 1.6 and similar changes to state law cannot fix the core concerns that the lawyer must consider before agreeing to make those disclosures. Indeed, an increase in the requirement to reveal client secrets is likely to leave lawyers more than less discretion in determining when and when to disclose.