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Prof Responsibility • Confidentiality
PR#060
Legal Definition
Under Rule 1.6(b), a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) 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;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) 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 upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) 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;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) 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 upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
Plain English Explanation
Under the ABA rules, there are 7 situations where a lawyer may choose to reveal information about their representation of a client if the lawyer reasonably believes it's necessary:
(1) Preventing Death or Substantial Bodily Harm:
This exception acknowledges that human life and safety trump confidentiality. If a client confesses plans for violence, a lawyer can speak up. For instance, if a client reveals intentions to commit a terrorist act, the attorney can alert authorities. It's not just about future acts either – if a client admits to poisoning a water supply, the lawyer may disclose to prevent ongoing harm.
(2) Stopping Client Crimes or Fraud Using Lawyer's Services:
This provision prevents lawyers from becoming unwitting accomplices. Say a client is using the lawyer's help in drafting contracts to run a massive Ponzi scheme. Once the lawyer realizes this, they can reveal information to stop the fraud. The key here is that the lawyer's services must be involved, and the potential harm must be substantial.
(3) Rectifying Financial Harm from Client's Crime or Fraud:
This is the "cleanup" exception. If a lawyer's services were used in a crime or fraud that has already occurred, the lawyer can disclose information to help victims recover losses. For example, if a lawyer helped a client sell fraudulent securities, they could later reveal information to help investors recoup their money.
(4) Securing Ethics Advice:
Lawyers sometimes need guidance too. This exception allows attorneys to discuss client matters with ethics experts or other lawyers to ensure they're following the rules. It's a safety net that helps maintain ethical practice across the profession.
(5) Lawyer's Self-Defense:
If a client sues their lawyer or files a bar complaint, the lawyer isn't left muzzled. They can reveal confidential information necessary to defend themselves. This also applies if the lawyer needs to establish a claim against the client, like for unpaid fees.
(6) Complying with Law or Court Orders:
Sometimes, the legal system itself demands disclosure. If a court orders a lawyer to testify about a client matter, this exception may require compliance. It also covers situations where other laws mandate reporting, like child abuse notification laws.
(7) Conflict Checks in Lawyer Job Changes:
When lawyers move between firms, they need to ensure they're not bringing conflicts of interest with them. This exception allows limited disclosure to check for such conflicts, but it comes with strict rules to protect client interests.
Note that it is important to understand that these exceptions interact with other ethical rules. For instance, while a lawyer may be permitted to disclose under these exceptions, they might still be required to consult with the client if practicable under Rule 1.4 (Communication). For example, under Rule 1.6(b), a lawyer might disclose confidential client information to prevent substantial harm, but under Rule 1.4, the lawyer must promptly inform the client of this disclosure and explain its implications so the client can make informed decisions.
(1) Preventing Death or Substantial Bodily Harm:
This exception acknowledges that human life and safety trump confidentiality. If a client confesses plans for violence, a lawyer can speak up. For instance, if a client reveals intentions to commit a terrorist act, the attorney can alert authorities. It's not just about future acts either – if a client admits to poisoning a water supply, the lawyer may disclose to prevent ongoing harm.
(2) Stopping Client Crimes or Fraud Using Lawyer's Services:
This provision prevents lawyers from becoming unwitting accomplices. Say a client is using the lawyer's help in drafting contracts to run a massive Ponzi scheme. Once the lawyer realizes this, they can reveal information to stop the fraud. The key here is that the lawyer's services must be involved, and the potential harm must be substantial.
(3) Rectifying Financial Harm from Client's Crime or Fraud:
This is the "cleanup" exception. If a lawyer's services were used in a crime or fraud that has already occurred, the lawyer can disclose information to help victims recover losses. For example, if a lawyer helped a client sell fraudulent securities, they could later reveal information to help investors recoup their money.
(4) Securing Ethics Advice:
Lawyers sometimes need guidance too. This exception allows attorneys to discuss client matters with ethics experts or other lawyers to ensure they're following the rules. It's a safety net that helps maintain ethical practice across the profession.
(5) Lawyer's Self-Defense:
If a client sues their lawyer or files a bar complaint, the lawyer isn't left muzzled. They can reveal confidential information necessary to defend themselves. This also applies if the lawyer needs to establish a claim against the client, like for unpaid fees.
(6) Complying with Law or Court Orders:
Sometimes, the legal system itself demands disclosure. If a court orders a lawyer to testify about a client matter, this exception may require compliance. It also covers situations where other laws mandate reporting, like child abuse notification laws.
(7) Conflict Checks in Lawyer Job Changes:
When lawyers move between firms, they need to ensure they're not bringing conflicts of interest with them. This exception allows limited disclosure to check for such conflicts, but it comes with strict rules to protect client interests.
Note that it is important to understand that these exceptions interact with other ethical rules. For instance, while a lawyer may be permitted to disclose under these exceptions, they might still be required to consult with the client if practicable under Rule 1.4 (Communication). For example, under Rule 1.6(b), a lawyer might disclose confidential client information to prevent substantial harm, but under Rule 1.4, the lawyer must promptly inform the client of this disclosure and explain its implications so the client can make informed decisions.
Hypothetical
Hypo 1: Bob represents Sam, a chemical company CEO. During a meeting, Sam casually mentions that the company has been dumping toxic waste in a local river, causing severe health issues in nearby communities. Bob is horrified and considers disclosing this information to prevent further harm. Result: Under exception (1), Bob may reveal this information to prevent reasonably certain death or substantial bodily harm to the affected communities. The ongoing dumping poses a serious threat to public health, which outweighs the duty of confidentiality in this case.
Hypo 2: Bob is helping Sam's company with a major real estate deal. Sam confides that he's using forged documents to inflate the property's value, potentially defrauding investors of millions. Bob realizes his legal work is being used to further this fraud. Result: Exception (2) allows Bob to disclose information to prevent the client from committing a crime or fraud that's likely to cause substantial financial injury, especially since Sam is using Bob's services to do so. Bob may reveal enough information to stop the fraudulent deal and protect potential investors.
Hypo 3: After a merger Bob handled for Sam's company, Bob learns that Sam hid massive debts during the process, causing the acquiring company to lose billions. The merger is complete, but the fraud has just come to light. Result: Under exception (3), Bob may disclose information to mitigate or rectify the substantial financial injury resulting from Sam's fraud, which was committed using Bob's legal services. This could help the damaged company recover some of its losses.
Hypo 4: Bob is unsure about his ethical obligations regarding Sam's confidences. He considers discussing the situation with his mentor, a retired judge. Result: Exception (4) allows Bob to reveal confidential information to get legal advice about his compliance with the ethics rules. He can discuss the details with his mentor to get guidance on how to handle the situation properly.
Hypo 5: Sam is angry about the outcome of a case and sues Bob for malpractice, claiming Bob never told him about a crucial deadline. Bob knows this isn't true. Result: Exception (5) permits Bob to use confidential information to defend himself against Sam's malpractice claim. Bob can reveal communications that prove he did inform Sam about the deadline.
Hypo 6: Sam tells Bob that he cheated on his wife last year. Bob, who is friends with Sam's wife, wants to tell her about the infidelity. Result: None of the exceptions apply here. This personal information, while potentially hurtful, doesn't involve death, bodily harm, financial crimes, or any of the other specific situations covered by the exceptions. Bob must maintain confidentiality.
Hypo 2: Bob is helping Sam's company with a major real estate deal. Sam confides that he's using forged documents to inflate the property's value, potentially defrauding investors of millions. Bob realizes his legal work is being used to further this fraud. Result: Exception (2) allows Bob to disclose information to prevent the client from committing a crime or fraud that's likely to cause substantial financial injury, especially since Sam is using Bob's services to do so. Bob may reveal enough information to stop the fraudulent deal and protect potential investors.
Hypo 3: After a merger Bob handled for Sam's company, Bob learns that Sam hid massive debts during the process, causing the acquiring company to lose billions. The merger is complete, but the fraud has just come to light. Result: Under exception (3), Bob may disclose information to mitigate or rectify the substantial financial injury resulting from Sam's fraud, which was committed using Bob's legal services. This could help the damaged company recover some of its losses.
Hypo 4: Bob is unsure about his ethical obligations regarding Sam's confidences. He considers discussing the situation with his mentor, a retired judge. Result: Exception (4) allows Bob to reveal confidential information to get legal advice about his compliance with the ethics rules. He can discuss the details with his mentor to get guidance on how to handle the situation properly.
Hypo 5: Sam is angry about the outcome of a case and sues Bob for malpractice, claiming Bob never told him about a crucial deadline. Bob knows this isn't true. Result: Exception (5) permits Bob to use confidential information to defend himself against Sam's malpractice claim. Bob can reveal communications that prove he did inform Sam about the deadline.
Hypo 6: Sam tells Bob that he cheated on his wife last year. Bob, who is friends with Sam's wife, wants to tell her about the infidelity. Result: None of the exceptions apply here. This personal information, while potentially hurtful, doesn't involve death, bodily harm, financial crimes, or any of the other specific situations covered by the exceptions. Bob must maintain confidentiality.
Visual Aids
Related Concepts
How does California's Rule 1.13 regarding Organizations as Clients differ from the ABA rules?
If a lawyer for an organization becomes aware that someone from the organization intends to break the law, how must the lawyer respond?
If an attorney in California becomes aware that their client is violating state or federal securities law, what must they do?
In California, what are the three exceptions to the Duty of Confidentiality?
What is the Duty of Confidentiality?
