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Excerpt
from Reporter’s Recommendations for Revisions to Washington RPC,
published 1/26/2003,
by Barrie Althoff, WSBA Professionalism Counsel and [initially] Reporter to the Committee to Evaluate Washington Rules of Professional Conduct (“Ethics 2003 Committee”): Possible changes to RPC 1.6 are probably the single most important and controversial decision facing the committee. Lawyer confidentiality has long been viewed as a core value of the profession and as a necessary tool to encourage clients to disclose all relevant information so that the lawyer can provide competent legal advice. There is wide public belief, however, that lawyer confidentiality is in fact used to enable clients to engage in misconduct or shield them from the consequences of their own misconduct and that lawyers should not be allowed to remain passive when, by releasing confidential information about the client, they can prevent, rectify, or mitigate a crime by the lawyer’s client or significant harm by the client to others or their property. Included would be reasonably certain death, substantial bodily harm, crimes, engaging in substantial frauds, and so on. This view of disclosure is based on the concept that a lawyer has a duty not only to a client, but also to society at large and that the lawyer’s duty of confidentiality must in some cases, discussed below, yield to the greater good of society. The trigger for disclosure should neither be so low that it unnecessarily undermines lawyer confidentiality, nor so high that it permits a client to engage in known misconduct with impunity. Lawyers should not become government informers or agents of the state. A rule that permits or requires a lawyer to disclose client fraud or crime should not assume that those are readily apparent to and identifiable by the lawyer, when often facts and client intent are ambiguous and uncertain. A rule permitting or requiring disclosure should not open the door to unscrupulous or careless lawyers misusing confidential information. The ABA E2K [Ethics 2000] Commission recommended substantial amendment to ABA MRPC 1.6 principally to permit (but not require) lawyer disclosures to prevent future crime and fraud and to prevent, mitigate or rectify consequences of past crime and fraud. … The Conference of Chief Justices supported the ABA E2K recommendation. The ABA House of Delegates, however, rejected [in Aug. 2001, but adopted in Aug. 2003] most of that recommendation as to confidentiality. …. The reporter has drafted alternative versions of a proposed rule. The reporter recommends that Washington not retain its existing RPC 1.6 and not adopt the current [as of Jan. 2003] ABA MRPC 1.6. Instead, the reporter recommends that Washington adopt one of two alternatives, both based on the ABA E2K version, both of which considerably expand what a lawyer may disclose. The first proposed revision of Washington RPC 1.6 (which the reporter has labeled as “Permissive E2K”) is set out [below]. It basically adopts the ABA E2K recommended version with changes reflecting Washington’s existing more liberal disclosure provision as to crimes by modifying (b)(2), and by adding (c) (as to fiduciary breaches). It also defines “information” by carrying over WA existing definitions of confidences and secret – see note below. Redlining compares ABA E2K to the reporter’s recommendation. The reporter believes this alternative meets the SEC’s newly adopted rules as described in SEC Press Release 2003-13, but until those new rules are published some uncertainty remains. The second alternative proposed revision of Washington’s RPC 1.6 (which the reporter has labeled as “Mandatory E2K”) is set out [below]. It also adopts the ABA E2K version, but significantly revises it to make mandatory certain disclosures and leave others permissive. The ABA E2K did not recommend this mandatory approach, although various commentators have suggested something similar. The reporter believes this version is closer to what the public expects of lawyers. The ABA E2K recommended version of ABA MRPC 1.6 … significantly expands over current ABA MRPC 1.6 what the lawyer MAY disclose. But it does not REQUIRE the lawyer to disclose information that might prevent commission of a crime, reasonably certain death, and so on. There is very considerable public belief that lawyers should not only be permitted, but should be required, to disclose such information. The ABA Corporate Responsibility Task Force’s preliminary report recommends that MRPC 1.6 be amended to make disclosure mandatory in the manner similar to alternative two. Accordingly, the reporter has presented an alternative that would require mandatory disclosure in certain cases. |
| ALTERNATIVE ONE: (PERMISSIVE E2K) RULE 1.6: CONFIDENTIALITY OF INFORMATION (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; or (2) to prevent the client from committing (A) a crime, or (B) a 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; or (6) to comply with other law or a court order. |
ALTERNATIVE TWO: (MANDATORY E2K) RULE 1.6: CONFIDENTIALITY OF INFORMATION (b) A lawyer shall 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; or (2) to prevent the client from committing (A) a crime, or (B) a 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. (c) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to secure legal advice about the lawyer's compliance with these Rules; (2) 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; or (3) to comply with other law or a court order. |