January 2007

A Greater Need to Know

by Ellen Conedera Dial, WSBA President

As lawyers, each time we pick up the telephone, answer an e-mail, or meet with a client, we know that what is said most likely will be protected against further disclosure by Rule 1.6 of the Rules of Professional Conduct (RPCs). This protection lies at the heart of the attorney-client relationship. It encourages people to be open and candid with their lawyers, even if the facts and circumstances they describe are damaging, by giving them assurance that what they say will be held in confidence. We need our client’s candor in order to be effective lawyers and to give them good legal advice.

The RPCs tell us what information must be kept confidential, and under what circumstances that confidential information can nevertheless be divulged without the client’s consent. The RPCs guide us in balancing our fiduciary duty to clients with our fiduciary duty to our system of justice — duties that sometimes appear to be in conflict with one another. Recent changes to Washington’s RPCs governing confidentiality shift that balance. There are two added circumstances in which lawyers may (in one case, must) reveal otherwise confidential information in order to provide information that others have an urgent need to know. This shift seems to me to correspond to a fundamental change in our expectations as a society of what information will be available to help us make sound decisions about our individual and collective welfare.

For more than 20 years, our RPCs have allowed lawyers to reveal otherwise confidential information in limited circumstances in order to protect third parties. For example, the RPCs have allowed disclosure to prevent a client from committing a crime,1 and to inform a tribunal if a client who is a court-appointed fiduciary violates a fiduciary duty.2 The two new rules I mentioned, though, significantly expand the concept of what information can be disclosed without client consent. Moreover, in adopting the revised RPCs, the Supreme Court gave us the first mandatory disclosure rule that we have seen in our RPCs.3

The mandatory disclosure rule is RPC 1.6(b)(1), which requires lawyers to disclose confidential information “to prevent reasonably certain death or substantial bodily harm.” The ABA’s Model Rules (although not Washington’s RPCs) have long permitted a lawyer to reveal otherwise confidential information in order to prevent reasonably certain death or substantial bodily harm.4 In considering the model rule again this past year, the Supreme Court decided not only to adopt an exception to the rule of confidentiality in those instances, but to make disclosure mandatory. Comment 6 to the rule describes what “reasonably certain” means. The comment also gives an example of a circumstance where disclosure will be required — an accidental poisoning of a town’s water supply with a highly toxic substance. Although neither the rule nor the comments speak directly to the issue of intentional physical assault, it seems likely to me that lawyers will need to disclose information to prevent serious domestic violence and child abuse that are reasonably certain to occur. Of course, there will be many other circumstances in which the rule will come into play.

RPC 1.6(b)(1) marks an important change in our role as lawyers. We have long been the keepers of the integrity of the attorney-client relationship. As officers of the court, we also have a duty to support and protect the integrity and independence of the court. The rules allowing disclosure without client consent, however, historically have allowed lawyers to make the decision themselves whether or not to disclose. This new mandatory rule places on lawyers a larger duty to society. We no longer have discretion to determine whether we will place the client’s interests at risk in order to protect third parties in these limited circumstances; the decision has been made for us. How will this new role as mandatory reporters affect the attorney-client relationship, if at all? Specifically, will clients be less likely to disclose important information to their lawyers if they believe that lawyers will not keep it in confidence? This is one of the many questions raised by new RPC 1.6(b)(1).

The other new rule that allows disclosure to protect third parties mirrors a model rule regarding corporate fraud, and stems directly from the work of the ABA Task Force on Corporate Responsibility. RPC 1.6(b)(3) allows (but does not require) a lawyer to disclose confidential information to protect persons who have been or may be harmed financially by criminal or fraudulent acts. Under RPC 1.6(b)(3), a lawyer may reveal confidential information in certain circumstances “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.” The rule is directly related to recent corporate fraud scandals such as the collapse of Enron and the resulting harm to its stockholders, and is intended to assure that lawyers’ services will not be used to perpetrate — or perpetuate — a fraud on investors.

In my view, promulgation of this rule by the ABA, and adoption of it by our Supreme Court, results in part from the increased number of individuals of modest means who own stock in public companies — an investment strategy that our society encourages — and whose financial security can be seriously affected by the wrongful acts of the managers of the corporations whose stock they own. The rule reflects a belief that individuals need to know about serious wrongdoing in the management of companies in which they invest in order to protect themselves, that lawyers should not be used as a means of perpetrating that harm, and that the public need to know in this limited instance outweighs a client’s need for confidentiality. It evidences once again a shift in the balance of confidentiality and the public need to know, and gives greater weight to protecting the public.

Protecting the confidentiality of attorney-client communications is essential to our ability to protect and preserve the individual rights and collective values that are distinguishing characteristics of our system of government. Without that protection, individuals will not seek out legal advice, will not have important guidance in how to obey the law, and will not be able to take advantage of the benefits and protections of our legal system. The rule of confidentiality, however, is not absolute. It is intended to, and does, reflect the changing needs of the people our legal system is intended to serve. These two new rules signal a greater focus on the needs of the public for information that is essential to their ability to protect themselves, both in personal safety and in financial security. They also stand for a refusal to allow lawyers to be complicit, willingly or not, in perpetuating these kinds of wrongs.  

Ellen Conedera Dial can be reached at 206-359-8025 or ecdial@gmail.com. If you would like to write a letter to the editor on this topic, please e-mail it to letterstotheeditor@wsba.org or mail it to WSBA Bar News, Attn: Letters to the Editor, 1325 Fourth Ave., Ste. 600, Seattle, WA 98101-2539.

NOTES
 
1. RPC 1.6(b)(2).
 2. RPC 1.6(b)(7).
 3. The Supreme Court did not adopt Model Rule 3.3, which would require a lawyer to disclose confidential information in certain circumstances to prevent a fraud on a tribunal.
 4. Perhaps Washington did not previously adopt this model rule because of Washington’s long-established rule (not a part of the Model Rules) that lawyers may reveal otherwise confidential information in order to prevent a client from committing a crime.