Hi Chris
Still hot and hopelessly humid here. It makes it hard to think. I saw this in today's NYT. It may be of interest to you:
August 8, 2001
Lawyers May Reveal Secrets
of Clients, Bar Group Rules
By JONATHAN D. GLATER
ackers of an initiative to overhaul legal ethics
rules, allowing lawyers more leeway to
disclose client confidences to prevent fraud, injury
or death, won a partial victory at the annual
meeting of the American Bar Association in
Chicago this week.
The House of Delegates, the body that sets policy
for the organization, voted 243 to 184 on Monday
to approve a proposal allowing lawyers to disclose
confidences when doing so prevents "reasonably
certain death or substantial bodily harm."
But a proposal allowing lawyers to disclose financial fraud by a client if that client was using the lawyer's
services to commit the fraud was defeated 255 to 151 yesterday. And its supporters, recognizing they did not
have the votes, withdrew a similar proposal that also would have allowed disclosure of confidences under the
same circumstances in order to mitigate a financial loss.
Monday's change, the first update of the Model Rules of Professional Conduct in nearly 20 years, is
significant because it means that lawyers who may know of a defective product may now warn potential
victims, lawyers said. The current rule allows disclosure only "to prevent the client from committing a criminal
act that the lawyer believes is likely to result in imminent death or substantial bodily harm" — a more stringent
requirement because it is limited to disclosure related to criminal actions by the client.
"This is a great expansion in the freedom of lawyers to warn victims and
persons in danger of substantial bodily harm or death, regardless of who's
causing it," or whether it is imminent, said Stephen Gillers, a professor of legal ethics at New York University
School of Law. "That's important in a world of dangerous products, where you have exploding tires and cars
that overturn."
At the heart of the debate over the new rules is the balancing of lawyers' obligations to represent the interests
of clients against a larger, societal good. Both sides agree that the privilege to protect client confidences is not
absolute, but disagree about when it should be breached.
"I'm satisfied that this is an appropriate balance," said Nancy J. Moore, a professor of legal ethics at Boston
University Law School and a member of the commission that recommended the changes in disclosure rules.
"You have situations in which a client leaves the lawyer's office brandishing a gun on his way to an ex-spouse,"
she said. "It's simply too harmful to refuse to permit lawyers to disclose in these situations."
The delegates also backed a new rule that would prohibit a lawyer from having sex with a client unless a
consensual sexual relationship predated the professional contact.
The Model Rules are not binding on lawyers, whose conduct is regulated by the states, and the entire
amended code is subject to approval by the House of Delegates, possibly at its next meeting in six months.
State courts, which draft the rules of conduct, normally give great deference to the association, lawyers say.
But on this issue, many states have already acted independently to broaden lawyers' discretion. In New York,
for example, lawyers could reveal a client's intention to commit a crime, Professor Gillers said. "The New
York rule is in some ways broader and in some ways narrower than what the A.B.A. is proposing," he said,
because while it is not limited to violent crime, it allows disclosure only when it is the client who is about to
commit the crime.
Preserving client confidences is critically important in advocacy, many lawyers say, because without such
confidences, clients might be reluctant to tell their lawyers everything relevant to representation. If a client
withholds information from his lawyers, the argument goes, then it will be harder for the lawyers to effectively
defend that client.
"Clients need to know that when they come to an attorney and they seek environmental counsel or any type of
legal counsel, that they're doing so under the protection of due process," said Peter Hsiao, a partner at
Morrison & Foerster in Los Angeles. "That allows the free discussion between the client and the attorney that
makes the process work."
Companies might be more reluctant to discuss facts — such as environmental damage — when a lawyer
might turn around and disclose them publicly, several lawyers said. The perverse result of the new rule in such
a case would be a company's decision not to disclose at all.
But Professor Moore said it was uncertain whether the rules would have that effect, adding, "When life and
limb are at stake, it's better to err on the side of disclosure than nondisclosure."
The new rule may make it more difficult for lawyers to figure out when they have an option to disclose and
when they do not, Mr. Hsiao said. "Today I can look at the conduct and assess whether it would cause a
criminal violation," he said. But deciding whether an action is reasonably likely to cause bodily injury, he said,
may be more subjective.
Albert C. Harvey, a member of the commission proposing the changes, dismissed that concern. " `Reasonably
certain' is a concept that lawyers are familiar with and deal with all the time," he said.
The issue of protection of client confidences also came up the last time that the American Bar Association
overhauled its rules of professional conduct, in 1983.
Since then, many states have adopted permissive disclosure rules, said Lester Brickman, a professor who
teaches ethics at the Benjamin N. Cardozo School of Law at Yeshiva University.
"All the A.B.A. is doing right now is playing catch-up," he said. |
