The Ethics Of Client Secrecy
Revisiting Rule 1.6 or the Model Rules of Professional Conduct
Introduction
The obligation of an attorney to maintain the confidence of his or her client is basic to our profession and our legal system. Psychiatrists and members of the clergy have similar obligations. Each state has rules of evidence protecting the privileged nature of such confidential communications. The application of privilege law is a vast and varied subject.
We address here a much narrower question of whether the rules of ethics that restrict disclosure of client secrets should be relaxed in the interests of greater public safety. (1) We examine specific instances in which the attorney faces this ethical dilemma and offer suggestions for making the proper response.
The policy implications of obligating an attorney to make such disclosures cannot be ignored. For example, whom should the lawyer contact and what role might the lawyer have in any future proceedings against that client? What obligations does the attorney have to advise the client before making the disclosure? Are there limits to the advice that an attorney can provide to the client in this context? If the rule were expanded to include potential financial harm, as some have advocated, what impact might that have on ordinary and customary forms of competition? Can an attorney who elected to make the disclosure for the safety or benefit of others be compelled to testify against his or her client in subsequent civil or criminal proceedings? Though these are difficult questions, ethics professors and attorneys serving on state and ABA ethics committees must step into the 21st century to revisit the fragile balance between a free and effective legal system and a society interested in preventing fraud and violence against others.
The Current Model Rule and The Proposed Change
The American Bar Association is presently moving to the center of this debate. The ABA Ethics 2000 Commission has drafted a proposal to amend Model Rule 1.6 to reflect a national standard that would have the effect of permitting disclosures of client secrets in a much broader set of circumstances. The ABA Model Rules are merely advisory. However, this particular proposed revision reflects a trend in over 41 states to make it easier for attorneys to disclose client confidences in absence of evidence of imminent death or substantial bodily harm. Advocates of these changes want attorneys to divulge client confidences in order to prevent the client from committing a crime or fraud, even if the harm is not imminent or certain.
On the other side of this debate are states, such as California, that impose on attorneys the duty to “maintain inviolate the confidences, and at every peril to himself or herself to preserve the secrets of his or her client.” (2) Exceptions under California law are quite narrow, and turn on evidence of clear and imminent harm or danger to the public. (3) Opponents of the new proposed rules argue that increased obligations to disclosure of client communications will undermine the trust that is essential to the attorney-client relationship. Others argue that certain clients will stop seeking legal advice, which will make it more difficult for lawyers to persuade clients to abandon plans that may resulting in physical or financial harm to others.
Under the current version of Model Rule 1.6, there are two exceptions under which an attorney cannot disclose confidential information absent client consent (4):
- To prevent a client from committing a criminal act that the attorney believes is likely to result in imminent death or substantial bodily harm.
- In self defense when, for example, the attorney is sued by a third party or the client, or the attorney is charged with a crime.
The proposed change as to subsection b(1) would expand these exceptions in three very significant ways. First, to prevent the client from committing a crime or fraud that is reasonably likely to resulting in substantial injury to another and the client proposes to use the attorneys’ services in connection with the crime or fraud. Second, where the client committed a fraud or crime, used the attorney’s services to further the wrongful conduct, and by disclosure, the attorney may mitigate or rectify an injury to another. Third, an attorney may obtain legal advice about what to do to comply with any rule of ethics.
Notably absent is the requirement that potential harm is imminent. The proposed rule would allow disclosure if the lawyer is reasonably certain that such harm will happen in the future absent the lawyer taking action to stop it. It is also anticipated that disclosure requirements may arise more in the lives of civil litigators, such as those who represent clients in toxic waste cases. In this instance, many argue for a policy that encourages clients to confide in their attorneys and seek advice that may promote public safety. Others insist that the risk in environmental cases may be too great to permit attorneys to “quietly handle the problem.”
Also being discussed is the possibility of including the threat of “financial injury,” which takes the rule far down the road from the usual “death or serious bodily harm” requirement. This proposal extends far beyond the traditional exception that seeks to protect others from death or serious bodily injury. Financial injury, by its nature, has never been afforded the same importance as physical harm.(5) Moreover, it is unlikely that the rule could be worded to avoid requiring disclosure of client confidences in nearly every business transaction or litigation context.
Maintaining Client Secrets: Specific Instances
The Plan to Do Wrong
If a client told his attorney that he had purchased a gun and intended to use it that night to kill his wife, there would be little question that the attorney could ethically divulge that information to the police. Under the crime/fraud exception to the attorney-client privilege, it is equally predictable that the attorney might be called to testify against the former client.(6)
However, most client disclosures are not that direct. Thus, the inquiry continues. The lawyer must exercise “professional discretion” over the manner and scope of the disclosure. (7)Clearly, the lawyer cannot assist or advise the client in committing the crime. The attorney must limit the disclosure to that which is reasonably necessary to prevent the crime. In addition, should the attorney learn after the fact that he or she provided advice that ultimately facilitated the commission of a crime, the attorney has no duty of disclosure. It is very difficult for a lawyer to know with certainty whether the client will actually carry out the described plan. The client may have a change of mind, or the attorney may be able to persuade the client not to take action.
The lawyers’ exercise of discretion requires consideration of such factors as the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction, and factors that may extenuate the conduct in question. (8)
Should the attorney decide not to take preventive action, there is no ethical violation. (9)
The Fugitive
Few civil litigation attorneys are presented with the ethical dilemma of whether they disclose to authorities the whereabouts of their fugitive clients. The expansion of “white collar” crimes, particularly in the area of intellectual property rights, may change that for some practicitioners. One commentator suggests that the better view is that the attorney can continue representing the client, provided the lawyer does not become an aider and abetter to a crime. The other view is that the mere act of flight is a “continuing crime,” which triggers the ethical obligation of disclosure. (10) One further point to consider is whether the “continuing crime” poses a danger to others. Should the attorney conclude that the client poses a threat of serious injury to others, we return to the requirements of Model Rule 1.6 and equivalent state rules.
Another option available to the attorney is to seek a court order directing the disclosure or confirming the attorney’s right to assert the attorney-client privilege on behalf of the client.(11) This may, however, create further ethical problems, including a conflict of interest, if the attorney stands in court as both the advocate for the client and the potential informant seeking instructions from the court.
Client Confidences in Representing the Insurer and Insured
Insureds often inform defense counsel hired by the insurer of facts that could limit or negate coverage. The defense counsel clearly represents the insured and the rule against disclosure of client confidences clearly applies. The defense counsel also has a duty to gather facts and make timely disclosures to the insurer. In this scenario, the attorney has three options: (1) to disclose to the insurer, (2) withdraw, or (3) continued representation of the insured without disclosure to the insurer.
One commentator suggests that if the applicable state law regards the attorney as having two clients, the likely result being that the attorney will have a conflict of interest that cannot be disclosed, and withdrawal from representation is required. (12) Theoretically, this could be avoided if the client consented to disclosure. To obtain that consent, however, the attorney would have to provide the client with a complete explanation of the consequences of giving consent. It should be noted that there is no implied consent in these situations. (13)
Withdrawal from representation would appear to be the safest course of conduct, but this solution also presents problems. What is the attorney to say to the insurer about the reasons for a sudden withdrawal from pending litigation? A vague reference to “ethical problems” could alert the insurer to conduct further investigation pertaining to discovery. Carrying the problem one step further, what advice can the attorney give to the client when this issue arises? And finally, if the litigation is near trial, there is the potential prejudice to the insured in the timing of the withdrawal.
Conclusion
The clear trend is to expand the circumstances under which an attorney will be required to disclose client confidences. However, revisions to ABA Model Rule 1.6 and similar changes to state laws cannot resolve the essential questions that an attorney must address in deciding to make such disclosures. Indeed, an expansion of the obligation to disclose client secrets is likely to leave attorneys with more rather than less discretion in deciding when and what to disclose.
Because of the general nature of this article, the information provided may not be applicable in all situations and should not be considered specific legal advice. Please consult with your attorney for assistance with your particular situation.
Endnotes
1. This article was written prior to the tragedy on September 11, 2001. Given the prevailing national concern for greater public safety, even at the expense of certain liberties, it is probable that this debate will move further in the direction of encouraging lawyers to divulge client secrets where there are questions of public safety.
2. California State Bar Act section 6068(e) (delineating the duties of an attorney).
3. California law has codified subsection (b)(1) of the Model Code in Evidence Code section 956.5. Most states have a similar statutory provision.
4. The full text of the current version of Model Rule 1.6 is
(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 civil claim against the lawyer based on conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyers’ representation of the client.
5. Consider, for example, the general rule that persons who have only suffered economic harm may not recover for emotional distress damages absent some showing of egregious, outrageous, and willful misconduct by the defendant. See e.g. Merenda v. Superior Court (1992) 3 Cal.App.4th 1.
6. Conflict of interest rules would presumably bar the ambitious attorney who somehow assumed that he or she could continue to represent this client.
7. See ABA Comment to Model Rule 1.6.
8. Id.
9. We do not address here the extent to which the failure to timely disclose such information to the public would expose the attorney to civil liability.
10. Fortune, Underwood and Imwinkelried, Modern Litigation and Professional Responsibility Handbook, at page 671.
11. Id.
12. Fortune, Underwood and Imwinkelried, Modern Litigation and Professional Responsibility Handbook, at page 582.
13. In Rockwell Intl. v. Superior Court (1994), the court ruled that the cooperation clause in the policy was not an implied waiver of attorney-client privileged communications in the event of a conflict between the insured and the insurer.
For further information regarding this article, feel free to contact Therese Cannata.