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As noted, the attorney-client privilege is limited to situations in which the attorney is called to testify or produce documents. In other situations, attorneys must find guidance in other sources. The primary source of guidance for attorneys regarding their obligation of confidentiality is Model Rule 1.6. Read Rule 1.6 in its entirety.
The basic tenor of the Model Rules is nondisclosure. MR 1.6(a) establishes the general rule that a client’s information should neither be revealed nor used by an attorney. MR 1.6(b) sets out limited exceptions to the confidentiality requirement, but none, by its own terms, makes disclosure mandatory.
Model Rule 1.6 protects "information relating to the representation." This has been deemed to cover "all information relating to the representation regardless of its source." Annotated Rules at 74, citing ABA Formal Op. 94-380 (1994). This broad reading of the scope of the confidentiality protection is generally in accord with the Code, which protected "confidences" and "secrets" of the client. 4-101(A).
The Restatement provides protection to "confidential client information," and defines it as follows
Confidential client information consists of information relating to the client, acquired by a lawyer or agent in the course of or as the result of representing the client, other than information that is generally known.
Restatement § 111.
As a general rule, an attorney may not reveal protected information to anyone other than as appropriate to advance the client’s interests. Restatement § 113. According to the Model Rules, such disclosures are permitted where "impliedly authorized in order to carry out the representation." MR 1.6(a). Even then, the attorney must exercise care to prevent disclosure beyond that which is needed. See MR 5.3. See also Restatement § 113(b)("lawyer must take reasonable steps in the circumstances to protect confidential client information against impermissible use or disclosure . . . .) Similarly, an attorney may not use protected information of his or her client, whether to the client's disadvantage, MR 1.8(b), 1.9(c)(1), or the attorney's advantage. Restatement § 112(2); see Matter of Miller, 127 Ariz. 299, 620 P.2d 214 (en banc 1980) (attorney violated Code where he used information regarding value of a business and the existence of an outstanding option to his own advantage: attorney purchased option and diluted interests of former client). This duty arises out of the attorney’s fiduciary obligations to the client. These duties of non-disclosure and non-use continue even after the termination of the attorney-client relationship. See Comment to MR 1.6, ¶ 21; see also Restatement § 112, Comment e.
The obligation to preserve the confidences and secrets of a client is not, however, absolute. Three exceptions which allow for disclosure of information otherwise protected by Model Rule 1.6(a) are found in the Rule itself, and at least one other exception is implied.
a. Consent: M.R. 1.6(a)
An attorney may disclose information protected by Rule 1.6 with the client's consent after consultation. Since the purpose of the confidentiality requirement is primarily to protect the client, this provision makes good sense. Consultation is defined in the terminology section of the Model Rules as "communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question." Terminology, ¶ 3. Under the Code, the relevant term was "full disclosure." The Restatement requires that the client be "adequately informed concerning the use or disclosure." Restatement § 114. However the standard is formulated, lawyers must assure that clients "have a full understanding of what they are being asked to consent to" and that "the consent is a completely voluntary matter with [the client], a consent which [the client] can deny without a sense of guilt or embarrassment." Informal Opinion 1287 (June 7, 1974). This is particularly true when dealing with clients who lack education or sophistication and who "might be more likely to be submissive to such requests. . . ." Id.
b. Intent to Commit a Crime: MR 1.6(b)(1)
The Model Rules permit an attorney to disclose information to the extent necessary to "prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm." 1.6(b)(1). The Rules make a clear distinction between past and future crimes. Under the Rules, no disclosure of past crime is permitted, but disclosure of a client's intent to commit a crime likely to cause death or serious bodily harm in the future is left to the discretion of the attorney. This is somewhat consistent with both the evidentiary and fiduciary views of confidentiality, since intent to commit a crime is an exception to the evidentiary privilege, and since agents are not privileged to commit crimes on behalf of their principals.
Why shouldn’t an attorney be required to disclose information when it can prevent imminent death or serious bodily harm? In what situations, if any, should the attorney be allowed to maintain the confidence where such serious consequences are likely to occur? And why shouldn’t an attorney be permitted to disclose the client’s intent to commit a crime likely to cause serious financial hardship to another? Or non-criminal conduct likely to cause significant harm? What values are being protected here, and at what cost? Does this rule go too far, or not far enough?
What about completed crimes or frauds? Completed crimes that have future consequences? Is the lawyer precluded from disclosing as long as no further conduct of the client is expected?
Consider the attorney who learns his client has planted a bomb and intends to detonate it in several hours. Can the attorney disclose? On what basis? What if the client has set the bomb to go off in several hours with no further action by the client. Can the attorney disclose in this situation? On what basis? If these situations lead to different outcomes, how are they justified? Are you convinced? If not, what should the rule be? See Restatement § 117A(2) ("if the client has acted at the time the lawyer learns of the threat of an injury or loss to the victim, use or disclosure is permissible only if the injury or loss has not yet occurred.")
What then if the attorney discovers that a client has already committed a crime or fraud while using the lawyer’s services? Can the lawyer disclose? Does it matter whether future consequences of this criminal or fraudulent act are still likely? Should it? Under the "black letter" of the Model Rules, disclosure is prohibited. The ABA had before it an amendment to the Rules in 1991 that would have permitted lawyers to reveal information "to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used." This provision was rejected by the House of Delegates after "sharp debate." Annotated Rules, at 84; see also Restatement § 117A, Reporters’ Notes, Comment b. There is some authority for the lawyer making a "noisy withdrawal" in such circumstances without actual disclosure of the confidence, but this is not expressly permitted in the text of the Rules themselves. See Comment to MR 1.6, ¶ 15; ABA Formal Op. 92-366. See generally Annotated Rules, at 84-85. This is a topic of continuing debate and several jurisdictions permit disclosure in these circumstances.
Where disclosure is permitted, how certain must an attorney be before he or she reveals a client's intent to commit a crime? What factors should an attorney consider in determining whether to exercise discretion in favor of disclosure?
c. Attorney Self Defense: M.R. 1.6(b)(2)
Under Canon 37 as originally adopted, an attorney was allowed to disclose client confidences when he or she was falsely accused of misconduct by a client. The word "falsely" was deleted from Canon 37 in 1937. MR 1.6(b)(2) currently governs disclosures in "self defense", and is arguably broader than Canon 37. It permits disclosure to the extent the lawyer reasonably believes necessary "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 lawyer’s representation of the client." See also Restatement § 116, 117,
It is clear from the rules and their interpretation that the allegation of misconduct need not come from the client in order for Rule 1.6(b)(2) to apply. Is this desirable? Doesn't the client in this situation lose all control over disclosure of confidences he or she has entrusted to the attorney? If a client can lose such control without any action on his or her part, will open and free communication between attorney and client be encouraged? Is this an instance of placing the lawyer's interest above those of the client?
When does the right to disclose come into play? Must there be a formal accusation (i.e., filing a suit, indictment, etc.) before the right to self defense arises? The court answered "No" in Application of Friend, 411 F. Supp. 776 (S.D.N.Y. 1975), where the attorney was being investigated by a grand jury along with his client. The court stated: "Although, as yet, no formal accusation has been made against Mr. Friend, it would be senseless to require the stigma of an indictment to attach prior to allowing Mr. Friend to invoke the exception of D.R. 4-101(C)(4) in his own defense." Id. at 777, fn *.
A charge of ineffective assistance of counsel provides an attorney with the right to use otherwise protected information of the client in self defense. See e.g., State v. King, 24 Wash. App. 495, 601 P.2d 982, 988 (1979). But care must be taken where the charge comes before trial to insure that the defendant's trial rights are not prejudiced. Butler v. United States, 414 A.2d 844 (D.C. en banc 1980). A motion to disqualify an attorney has been held not, by itself, to be an accusation of wrongful conduct sufficient to give the attorney the right to disclose confidences in self defense. "A motion for disqualification is not, by itself, an accusation of misconduct. Disqualification is a prophylactic measure. The court does not inquire into whether there have been actual ethical violations, but only whether they might occur." Levin v. Ripple Twist Mills, Inc., 416 F. Supp. 876, 886 (E.D. Penn. 1976). Accordingly, disclosure pursuant to 4-101(C)(4) [the predecessor to MR 1.6(b)(2)] is inappropriate in that context.
Attorney self-defense may also serve as an implied exception to the attorney-client privilege. See In re National Mtge Equity Corp. Mtge Pool Certif. Secur. Litig, 120 F.R.D. 687 (D.C. Calif. 1988) (law firm may disclose otherwise confidential attorney-client communications over client objections asserting privilege where the firm has been charged as co-defendant in securities fraud and other violations.)
How much disclosure is necessary to defend oneself? See Levin, supra:
In almost any case when an attorney and a former client are adversaries in the courtroom, there will be a credibility contest between them. This does not entitle the attorney to rummage through every file he has on that particular client (regardless of its relatedness to the subject matter of the present case) and to publicize any confidential communication he comes across which may tend to impeach his former client. At the very least, the word "necessary" in the disciplinary rule requires that the probative value of the disclosed material be great enough to outweigh the potential damage [in matters outside the case in suit] the disclosure will cause to the client and to the legal profession.
See Restatement § 116, Comment e, requiring "proportionate and restrained use" of such information. In order to properly disclose, "[t]he lawyer must reasonably believe that options short of use or disclosure have been exhausted or will be unavailing or that invoking them will substantially prejudice the lawyer’s position in the controversy."
Is there a risk that expansive interpretation of MR 1.6(b)(2) could lead to the indiscriminate joining of attorneys in law suits? The Court in Sullivan v. Chase Investment Services of Boston Inc., 434 F. Supp. 171 (N.D. Cal. 1977) thought so. It commented on the possibility that "the prospect of obtaining potentially damaging and otherwise unavailable evidence will encourage plaintiffs to sue defendants' attorneys routinely as aiders and abettors" Id. at 188. Is this likely? What can and should be done?
Consider the following proposed revision of the attorney self-defense provision suggested by Henry D. Levine in his article Self Interest or Self Defense: Lawyer Disregard of the Attorney-Client Privilege for Profit and Protection, 5 Hofstra L. Rev. 783 (1977):
Confidences or secrets necessary to establish or collect a reasonable fee, defend against a false accusation of wrongful conduct, or prevent the conviction of one wrongfully accused of crime, when permitted by a Court order confirming the justice and necessity of disclosure.
Disclosure by an attorney on his own behalf under [the preceding section] shall be reviewed by the appropriate bar association to determine its ethical propriety. A final judgment against an attorney claiming compensation or in favor of one accusing an attorney of wrongful conduct shall create a presumption that disclosure was unethical and in violation of the Code.
Does this revision adequately address and solve the problems posed by the current rules? Can you formulate a better rule?
d. Disclosure Permitted by the Rules or Required by Law or Court Order:
The Code contained an express provision, DR 4-101(c) (2), that permitted an attorney to disclose confidences or secrets where required by law or allowed by the Code. The Model Rules do not, within Rule 1.6 itself, contain a similar provision. The Commentary indicates that a "lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client," ¶ 19, and that, in addition to specific provisions of the Rules that mandate or permit disclosure, "a lawyer may be obligated or permitted by other provisions of law to give information about a client." ¶ 20. The Commentary further adds that "[w]hether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules, but a presumption should exist against supersession." Id.
Whether the Rules or the policies underlying them would prevent a citation of contempt for failure to comply with a court order is not clear, but the probable answer is no. Nor is it likely that the Rules or their underlying policy of confidentiality would prevent the application of criminal sanctions against an attorney who refused to disclose information required by law. In a case involving an attorney who was charged with a public health violation for failing to disclose the location of a body he learned in a confidential communication from his client (a defendant on trial for murder) and for failing to provide burial, the New York Court dismissed the indictment, finding the confidentiality claim outweighed the "trivia of a pseudo-criminal statute," People v. Belge, 372 N.Y.S.2d 798 (1975). The court speculated, however, that it would have had more difficulty had the charge been obstruction of justice.
The best course of action for an attorney faced with what he or she considers an erroneous, although binding, order to disclose client confidences or produce protected documents would be to attempt to appeal the decision rather than comply. See Note, Attorney-Client Privilege - Contempt: The Dilemma in Nondisclosure of Possibly Privileged Information, 45 Wash. L. Rev. 181 (1970); see also ABA Formal Op. 94-385 (1994), which requires a lawyer receiving a subpoena to attempt to limit the request on any legitimate grounds. If the ultimate decision goes against the attorney, however, failure to comply could lead to both contempt and discipline, and compliance at that point is appropriate. See Restatement § 115, which allows disclosure when required by law "after the lawyer takes reasonably appropriate steps to assert that the information is privileged or otherwise protected against disclosure."
Note that, while generally the Model Rules do not require disclosure by their own terms, Rule 3.3 directly overrides confidentiality and may require that the lawyer reveal confidential information in some circumstances. Where this rule is involved, disclosure may be mandatory. This Rule will be discussed at length in the next section.
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