(See below
for links to reference materials.)
Issue 1: Should lawyers be at least permitted, or be even required, to reveal client secrets when necessary to prevent death or substantial bodily harm, and to prevent or rectify harm to victims caused by a client's misuse of a lawyer's services to further crime or fraud? Comment 1-1: The WSBA is proposing merely permissive revelations to prevent death or substantial bodily injury, but not requiring revelations even to prevent an innocent's death. The WSBA opposes any revelations when a lawyer discovers a client has furthered a crime or fraud by misusing the lawyer's services, commonly called the "rectify fraud exception" to confidentiality, as reflected in ABA Model Rule 1.6(b)(3). Click here for the WSBA's proposed Rule 1.6 and proposed official comments, marked to show its variations from the ABA's model Rule 1.6 and its official comments. Comment 1-2: Former WSBA Professionalism Counsel Barrie Althoff recommended in January 2003 that the WA RPC ought to permit, and perhaps even should require, lawyers to reveal client secrets in each of those instances that protect the public (e.g., to prevent crime, death, substantial bodily or financial harm, and to rectify/mitigate harm from client's misuse of lawyer). Click here for an excerpt of his recommendations on Rule 1.6. For his full report, click PDF or DOC. Issue 2: Must lawyers perceive wrongful death or substantial bodily harm as "reasonably certain" before they may reveal preventive client information, or should they be permitted to make revelations whenever they perceive those harms as "likely"? Comment 2-1: Predicting future conduct is inherently uncertain. The phrase "reasonably certain" is comparable to "beyond a reasonable doubt" -- the standard of proof for criminal convictions. It is morally indefensible for a lawyer to remain silent when he or she believes a wrongful death or substantial bodily harm is likely to occur, and it is indefensible for "ethics rules" to forbid a lawyer from preventing such a harm by sounding a warning. Comment 2-2: In 1993, the Washington State Supreme Court declared that lawyers have an affirmative duty, as officers of the court, to warn judges of threats of harm by clients or by third parties. The court did not apply a "reasonably certain" probability test, nor even a "likely" probability test. Instead, high court jurists applied perhaps the lowest test of probability-- is the threat reasonably credible? -- declaring emphatically, "We conclude that attorneys, as officers of the court, have a duty to warn of true threats to harm a judge made by a client or a third party when the attorney has a reasonable belief that such threats are real." State v. Hansen, 122 Wn.2d 712, 721, 862 P.2d 117 (1993). Comment 2-2: The ABA Model Rules drafters choice of the phrase of "reasonably certain" rather than "likely" was a political concession in anticipation of opposition (that ensued in 2001) at the ABA House of Delegates from sociopathic lawyers who fear personal liability if their "ethics rules" again (as before 1983) should permit them to warn prospective victims of crime and fraud -- for they cannot forsee themselves sounding any such warnings. See Doug Schafer's comments posted at http://www.evergreenethics.com/E2K/LikelyArgument.html. One pathetic bar association even formally declared it unethical for a lawyer to warn the target of an impending murder. Click here for that 1990 "ethics opinion." Issue 3: Should lawyers' ethics rules permit them to reveal client information when applicable federal or state law requires that they do so? Comment 3-1: The ABA Model RPC 1.6(b)(6) permits lawyers to reveal client information to the extent the lawyer reasonably believes necessary to comply with other law or court order. The WSBA's proposed Rule 1.6(b)(6) would not permit revelations "to comply with other law," but only to comply with a court order. The federal and state laws that might require lawyers to disclose certain client information include federal tax laws (e.g., currency transactions reporting), federal securities law (e.g., SEC's Sarbanes-Oxley Act rules), and state laws requiring reports of child abuse and elder abuse. The WSBA has a history of taking the discredited position -- rejected consistently by courts -- that lawyers may disregard general laws that are inconsistent with their collective norms. In 1997, WSBA adopted its Formal Ethics Opinion No. 194 that directs lawyers to defy the U.S. Treasury regulations requiring them to identify clients on IRS Form 8300 reporting large currency transactions. See Susan P. Koniak, The Law Between the Bar and the State, 70 N.C.L. Rev. 1389 (1992) (describing the long history of organized bars defying laws and governmental officials). The most recent illustration of this is WSBA Formal Ethics Opinion (July 26, 2003) openly defying the SEC's rules and its position as expressed in SEC General Counsel's letter (July 23, 2003) admonishing the WSBA. Reference Materials: Current Amer. Bar Assoc. (ABA) Model RPC (full text and comments) ABA Ethics 2000 (E2K) Committee proposals, and rule-by-rule explanations. Wash. State Bar Assoc. (WSBA) "Ethics 2003 Committee" website, with its materials and recommendations. Proposed revised RPC approved 7/30/2004 by WSBA governing board for submission to State Supreme Court. Compilation of the public-interest rectify-fraud exceptions to client confidentiality of 32 states. Compilation of Historic Lawyer "Ethics" Rules on Acting to Prevent/Rectify Client Crime/Fraud. |