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September 2006Ethics and the LawConfidentiality Under the New Rules of Professional Conductby Anne I. Seidel For over 300 years, the obligation to keep a client’s confidences has been a central tenet of the legal profession.1 Lawyers are “regarded as people who know how to keep secrets, as much as they are regarded as litigators . . . or drafters of contracts.”2 Yet overriding duties to society or others sometimes take precedence and permit or even require a lawyer to disclose a client confidence. The newly revised Rule 1.6 of the Rules of Professional Conduct, effective September 1, 2006, changes the balance drawn between guarding a client’s secrets and disclosure.3 Here are the most notable changes. Expansion of Scope of Information Protected The amended RPC 1.6, like ABA Model Rule 1.6, prohibits disclosure of “information relating to the representation of a client.” Like the former rule (which applied to “confidences and secrets”), this goes beyond what is covered under the attorney-client privilege. For example, the rule applies if the lawyer obtained information from someone other than the client, or if the attorney-client privilege was breached by the presence of a third person. Comment [19] instructs that “information relating to the representation” should be interpreted broadly. Mandatory Disclosure For the first time, Washington lawyers are not only permitted, but are required, to disclose information obtained through representing a client. Such information must be revealed “to prevent reasonably certain death or substantial bodily harm.” Previously, a lawyer was permitted, but not required, to reveal confidential information to prevent a client from committing a crime. Although not included in the Model Rules, 13 other states currently have similar mandatory disclosure rules.4 The rule does not specify to whom the disclosure must be made, e.g., is it sufficient to report a death threat to the police, or does the lawyer also need to contact the victim? Given the mandatory nature of the rule and the lack of any qualifying language, it appears that a lawyer must disclose the information to everyone necessary to prevent death or substantial bodily harm. Exceptions to Confidentiality Requirement Expanded The amended rule contains two new exceptions to the general rule requiring a lawyer to keep information relating to representation of a client confidential. Rule 1.6(b)(4) permits a lawyer to reveal such information to secure legal advice about the lawyer’s compliance with the RPCs. The lawyer to whom such information is disclosed must maintain the confidentiality. Such disclosure was previously considered to be impliedly authorized by the rules. Rule 1.6(b)(3) adds a new exception permitting disclosure of information “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.” This is identical to Model Rule 1.6(b)(3). The drafters of the Model Rule state that it applies when the lawyer learns of the crime or fraud, after it was committed, and is designed to prevent loss from the crime or fraud rather than to prevent the crime or fraud itself.5 Model Rule 1.6(b)(2) contains a parallel exception to permit disclosure to prevent commission of a crime or fraud. Our new Rule 1.6(b)(2), like the former Rule 1.6(b)(1), permits lawyers to reveal information to prevent a client from committing any crime (rather than, as under the Model Rule, those reasonably certain to result in substantial financial injury and in furtherance of which the client used the lawyer’s services) but does not address fraud. This appears to mean that a lawyer may not reveal information to prevent a client from committing a fraud but instead must wait until the fraud is committed before taking any action. Two other rules to some extent fill in this gap: Rule 4.1(b) requires a lawyer to disclose a material fact to avoid assisting in the client’s fraudulent act, but would not apply where the lawyer is aware of the client’s intended fraud but was not assisting in it. In addition, at least some forms of fraud also constitute crimes, in which case disclosure would be permitted under Rule 1.6(b)(2). The Court did not adopt any comments about Rule 1.6(b)(3). The amended RPC 1.6 retains all the other exceptions to the general rule of confidentiality found in the prior version, including, as discussed above, to prevent the client from committing a crime,6 to establish a claim or defense in litigation between the lawyer and client,7 to comply with a court order,8 or to tell a court about a breach of fiduciary duty by a client who is serving as a court-appointed fiduciary.9 As Comment [23] notes, the exceptions to the general rule of confidentiality “should not be carelessly invoked.”10 Rather, a lawyer must make all practicable efforts to avoid unnecessary disclosure: to limit such disclosure to those having a need for the information, and to take actions, like seeking protective orders, to limit the risk of disclosure. Court Rejects Model Rule’s Increased Duty of Disclosure to the Court Rule 3.3 addresses candor to tribunals. When a client has made or plans to make a false statement to a court, there is a conflict between the lawyer’s duty of confidentiality to the client and the lawyer’s duty of candor to the tribunal. RPC 3.3 remains virtually the same as in the prior version, which favors the duty of confidentiality. Under that rule, a lawyer must disclose a material fact to the court to avoid assisting a criminal or fraudulent act by the client and must similarly disclose to the court if the lawyer learns that material evidence offered was false, but only to the extent permitted by RPC 1.6.11 Because the exceptions to RPC 1.6 have been expanded to permit disclosure to rectify financial harm from a client’s criminal or fraudulent acts, a lawyer has an increased duty to disclose information to the court. A disclosure that is permissive under RPC 1.6 becomes mandatory if RPC 3.3 applies. For example, if a lawyer obtains a substantial judgment on his client’s behalf and later learns that the client testified falsely in that case, the lawyer would be permitted under RPC 1.6(b)(3) to reveal the information to mitigate or rectify financial injury to the opposing party (e.g., by permitting the party to file a motion to vacate the judgment). Because an exception to RPC 1.6 applies, the lawyer would therefore be required under RPC 3.3(c) to make the disclosure to the court. Conclusion The changes to the rules on confidentiality will not affect most lawyers’ day-to-day practice, as they will continue to keep client information confidential. Occasionally, though, a lawyer will be faced with a situation in which disclosure appears appropriate or even possibly required. If there is any doubt about what course of action to take, we encourage lawyers to call the WSBA Ethics Line at 206-727-8284 or 800-945-WSBA, ext. 8284. Anne I. Seidel is the chief disciplinary counsel for the Washington State Bar Association and was a member of the Ethics 2003 Committee. She can be reached at annes@wsba.org. Opinions expressed are the author’s and are not the official position of the Washington State Bar Association. NOTES
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