Excerpt from letter of March 28, 1985 to Washington State Supreme Court
by Professor Robert H. Aronson, Ethics Professor
at University of Washington Law School,
commenting on the Court's proposed draft for adoption
of the 1983 ABA Model Rules of Professional Conduct
with various changes requested by the Washington State Bar Association.
[The Court rejected Prof. Aronson's advice.][Note: The underlining is Professor Aronson's; the italics and bolding are added here for emphasis.]
"(3) With respect to the substantive provisions of the proposed Rules, I am most concerned with Rules 1.6 and 3.3, dealing with the tension between the lawyer’s duties of candor and confidentiality. Under Rule 1.6(b)(1), there is an exception to the duty of confidentiality with respect to information “the lawyer reasonably believes necessary ... [t]o prevent the client from committing a crime.” Since this is a departure from the ABA’s Model Rule 1.6(b)(1), and since virtually every state that has considered the Model Rules has rejected the ABA’s version, the basis for the Washington proposed Rule 1.6(b)(1) is not uniformity. However, whereas the proposed Rule would permit revelation only to prevent the client from committing a future crime, other jurisdictions that have adopted or proposed adoption of the new rules have also permitted (in some cases, required) revelation necessary to prevent a future fraud, and to rectify criminal or fraudulent client acts in which the lawyer’s services had been used.
Under present Disciplinary Rule 7-102(B)(1), a lawyer in Washington who receives information clearly establishing that his client has,
“in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected tribunal and may reveal the fraud to the affected person.” (Emphasis added.)If Rule 1.6(b)(1) is adopted as presently proposed, lawyers in Washington will not be permitted to reveal either the client’s intent to defraud another, or prior fraud occurring during the lawyer’s representation, and will not be required to reveal even the client’s intent to commit a crime. At a time when public respect for lawyers is at an all-time low and lawyers are increasingly being found in complicity with their client’s criminal or fraudulent conduct, it is inconceivable to me that the Washington Supreme Court intends to go on record as proposing to lessen the duty of lawyers to protect the public from their clients’ criminal or fraudulent conduct. Although the reasons for vigilant protection of client confidences are strong, those policy bases disappear when the client seeks, not representation for past acts, whether criminal or not, but rather to harm others in the future. Likewise, a client is entitled to complete confidentiality with respect to proper legal representation, but has no justified expectation of confidentiality when he uses the attorney to perpetrate a fraud on another person. It is unthinkable for Washington to prohibit revelation under those circumstances when it now requires it.I would propose that the Court clearly reaffirm its commitment to protect the public and the integrity of lawyers and the legal system, consistent with its strong concern for client confidentiality, by adopting a Rule such as that recently adopted by the New Jersey Supreme Court, as follows:
Rule 1.6(b): “A lawyer shall reveal such confidences or secrets to the extent the lawyer reasonably believes necessary:Those states that have proposed or adopted a provision similar to my proposal, despite any attempt to maintain uniformity with respect to the other ABA Model Rules provisions, include: Florida, Maryland, Minnesota, and New Jersey. Most other states are in the process of considering a similar proposal.(1) To prevent the client from committing a criminal or fraudulent act.”
Rule 1.6(c): “A lawyer may reveal such confidences or secrets to the extent the lawyer reasonably believes necessary:
(1) To rectify a criminal or fraudulent act in the furtherance of which the lawyer’s services had been used.
(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, to respond to allegations in any proceeding concerning the lawyer’s representation of the client, or pursuant to court order.”
[Prof. Aronson closed by saying:] At a time when the ethics of lawyers and judges are coming under increasing scrutiny and criticism, adoption of an ethical code for the profession is probably the most visible action the Court can take in the area. It is crucial, therefore, that each provision reflect the best judgment of the bench and bar."
[End of the excerpt from Professor Aronson's 1985 letter.]
[Link to the New Jersey Supreme Court's Rules of Professional Conduct, Rule 1.6]
Rule 1.6 as adopted by the Washington State Supreme Court, effective September 1, 1985:
"(a) A lawyer shall not reveal confidences or secrets relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in section (b).(b) A lawyer may reveal such confidences or secrets to the extent the lawyer reasonably believes necessary:
(1) To prevent the client from committing a crime [Doug's comment: not to prevent or stop fraud or to prevent third-party crime]; or
(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, to respond to allegations in any proceeding concerning the lawyer's representation of the client, or pursuant to court order."