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Bar News - August 17, 2001 ABA Delegates Joust Over Changes to Confidentiality Rules By: Attorney Stephen Tober NH’s rule already broader than model rule IN A DEBATE earlier this month over crucial aspects of the lawyer-client relationship, the ABA’s House of Delegates reversed course – first approving a revision of the rules that would loosen the bounds of attorney-client confidentiality, then the following day defeating other provisions loosening secrecy.
On Tuesday, August 7, the final day of the ABA Annual Meeting, proponents of Ethics 2000, a comprehensive overhaul of the Model Rules of Professional Conduct, withdrew other items set for a vote by the ABA’s policy-making body. On Monday, the House of Delegates had approved modifying Paragraph b (1) of Rule 1.6 to allow lawyers to reveal client confidences in order to prevent substantial bodily harm, even if the harm isn’t ‘’imminent’’ and the client’s planned conduct isn’t a crime. The change would allow lawyers to reveal such things as a client’s plans to sell defective products, to contaminate property or to commit suicide, according to a bulletin from Lawyers Weekly USA. After that, however, the House of Delegates voted not to change the rules for reporting fraud or crime in which the client enlists the lawyer’s help. Ethics 2000 Commission Chair E. Norman Veasey said the proponents decided to put off further item-by-item votes and to consider raising the issue again at the next ABA Meeting in February 2002. Nevertheless, the changes proposed in Ethics 2000, which will likely be debated again, include other aspects of a lawyer’s ethical obligations to clients, the courts and society. The NHBA Ethics Committee will be seeking input on possible revisions of NH’s Rules of Professional Conduct. (See a future issue of Bar News for more on the review process.) In a message to the House of Delegates in favor of the confidentiality change, the Ethics 2000 Commission had written: "There has always been a tension between the goal of keeping inviolate the client’s confidences and the need to give the lawyer the ability to deal with situations where disclosure is necessary to protect third parties or the legal system from substantial harm. The commission is proposing to broaden, in carefully circumscribed situations, the grounds for discretionary disclosure of client information under Rule 1.6, recognizing that a number of state jurisdictions have already adopted this position. As amended, Rule 1.6 would permit (though not require) disclosure to prevent death or substantial bodily harm and to prevent or rectify substantial injury resulting from a client’s abuse of the lawyer’s services." [Editor’s Note: NH’s Code of Professional Conduct is broader than the current Model Rule, allowing a lawyer to reveal confidences regarding criminal acts likely to result in death or bodily harm or substantial injury to the financial interest or property of another.] Commission member Lawrence J. Fox, who objected to a number of changes in the Ethics 2000 proposal, wrote a dissent that accompanied the report: "To maintain the sanctity of the lawyer-client relationship, the exceptions to confidentiality crafted into our rules must be as narrowly drawn as possible." "This the present rules do. Life, serious bodily harm, candor to the tribunal and a lawyer’s defending herself against claims are the only exceptions we maintain. But now, if the Ethics 2000 proposal is adopted, whole new categories of disclosure will be possible. In order to prevent, mitigate or rectify a client fraud in which the lawyer’s services have been employed, confidentiality will now be grist for the disclosure mill." "The client-lawyer relationship is fragile enough; this additional impediment to trust should not be added to the mix," Fox wrote. "Its effect on full disclosure by client to lawyer – the essential purpose of having a rule governing confidentiality in the first place – is incalculable. For certain, if this rule is adopted, lawyers will have far fewer opportunities than they enjoy today to remonstrate with their clients to do the right thing." Opinion is clearly divided on the issue. Beyond the ABA, an Internet poll on the Lawyers Weekly USA site recorded a 58-43 percent negative view of allowing lawyers to violate confidences to prevent or rectify fraud. Before voting on the confidentiality provisions, the delegates in item-by-item voting rejected an Ethics 2000 proposal to require lawyers to put fee agreements in writing. In other action at the ABA Meeting, the House of Delegates approved a call for a moratorium on the imposition of the death penalty in the US. More on the ABA’s discussion of these issues can be found at Also, check the next issue of Bar News for reports from NH delegates to the ABA House of Delegates. A list of opinions and practical ethics articles from the NHBA Ethics Committee is available in the "NH Practice Guidelines" section of our site. Portsmouth attorney and ABA State Delegate Stephen Tober has been named to the ABA’s Standing Committee on the Federal Judiciary. See article on page 12.
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