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Disclosure Provisions of the Model Rules of Professional Conduct

Published online by Cambridge University Press:  20 November 2018

Norman Redlich
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Extract

The intense debate surrounding the proposed Model Rules of Professional Conduct centers primarily on those provisions that permit, or require, the disclosure by lawyers of information that is presently shielded from production by Canon 4 of the Code of Professional Responsibility. Indeed, were it not for the disclosure provisions, which many critics decry as fundamentally altering the lawyer-client relationship, the proposed Model Rules might have generated widespread support, or perhaps indifference, from most segments of the bar.

Type
Review Symposium: Model Rules of Professional Conduct
Information
American Bar Foundation Research Journal , Volume 5 , Issue 4 , Fall 1980 , pp. 981 - 992
Copyright
Copyright © American Bar Foundation, 1980 

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References

1 Canon 4 provides, “A lawyer should preserve the confidences and secrets of a client.” Since the Disciplinary Rules under Canon 4 will be mentioned frequently in this review, it may be helpful to set them out at this point:Google Scholar

DlSClPLINARY RULESGoogle Scholar

DR 4–101 Preservation of Confidences and Secrets of a Client.Google Scholar

  1. (A)

    (A) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

  2. (B)

    (B) Except when permitted under DR 4–101(C), a lawyer shall not knowingly:

    1. (1)

      (1) Reveal a confidence or secret of his client.

    2. (2)

      (2) Use a confidence or secret of his client to the disadvantage of the client.

    3. (3)

      (3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.

  3. (C)

    (C) A lawyer may reveal:

    1. (1)

      (1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.

    2. (2)

      (2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.

    3. (3)

      (3) The intention of his client to commit a crime and the information necessary to prevent the crime.

    4. (4)

      (4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.

  4. (D)

    (D) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4–101(C) through an employee. [Citations omitted.]

American Bar Association, Committee on Ethics and Professional Responsibility, Model Code of Professional Responsibility and Code of Judicial Conduct (Chicago: American Bar Association, as amended Feb. 1979).Google Scholar

2 The classic statement of the evidentiary privilege is found in 8 Wigmore, Evidence §2292 (McNaughton rev. 1961):Google Scholar

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. [Citation omitted.]

See also McCormick, Evidence, ch. 10.Google Scholar

3 See SEC v. Nat'l Student Marketing Corp. 457 F. Supp. 682 (D.D.C. 1978); Norman S. Johnson, The Expanding Responsibility of Attorneys in Practice Before the SEC: Disciplinary Proceedings Under Rule 2(e) of the Commission's Rules of Practice, 25 Mercer L. Rev. 637 (1974); Frederick D. Lipman, The SEC'S Reluctant Police Force: A New Role for Lawyers, 49 N.Y.U. L. Rev. 437 (1974); Junius Hoffman, On Learning of a Corporate Client's Crime or Fraud–-the Lawyer's Dilemma, 33 Bus. Law. 1389 (1978); Charles W. Wolfram, Client Perjury, 50 S. Cal. L. Rev. 809 (1977); Victor H. Kramer, Clients' Frauds and Their Lawyers' Obligations: A Study in Professional Irresponsibility, 67 Georgetown L.J. 991 (1979).Google Scholar

4 The “control group” doctrine, for example, will be before the United States Supreme Court during the 1980 term in United States v. Upjohn Co., 600 F.2d 1223 (6th Cir. 1979), cert. granted 48 U.S. L. W. 3602 (Mar. 18, 1980). See discussion in Developments–-Corporate Crime, 92 Harv. L. Rev. 1227, 1289–93 (1979). see also Wolfinbarger, Garner v., 430 F.2d 1093 (5th Cir. 1970).Google Scholar

5 ABA Formal Opinion 341 (Sept. 30, 1975), American Bar Association, Committee on Ethics and Professional Responsibility, Recent Ethics Opinions, Sept. 30, 1975 [looseleaf].Google Scholar

6 DR 7–102(B)(l) provides:Google Scholar

(B) A lawyer who receives information clearly establishing that:Google Scholar

(1) 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 person or tribunal, except when the information is protected as a privileged communication. [Citation omitted.]

The “except” clause was added in 1974 and, in Opinion 341, that clause was interpreted to include “secrets” as well as “confidences.” See discussion in the Annotated Code of Professional Responsibility 321–26 (Chicago: American Bar Foundation, 1979).Google Scholar

7 In many situations where there has been an unrectified misrepresentation, it would be extremely likely that the lawyer's continued representation would result in a violation of a disciplinary rule under DR 7–102(A), thereby triggering the mandatory withdrawal requirement of DR 2–110(B)(2). See Model Code, supra note 1.Google Scholar

8 Model Rule 1.7 provides:Google Scholar

1.7 Confidential InformationGoogle Scholar

  1. (a)

    (a) In giving testimony or providing evidence concerning a client's affairs, a lawyer shall not disclose information concerning the client except as authorized by the applicable law of evidentiary privilege. In other circumstances, a lawyer shall not disclose information about a client which relates to the client-lawyer relationship, which would embarrass the client, which is likely to be detrimental to the client, or which the client has requested not be disclosed, except as stated in paragraphs (b) and (c).

  2. (b)

    (b) A lawyer shall disclose information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm to another person, and to the extent required by law or the Rules of Professional Conduct.

  3. (c)

    (c) A lawyer may disclose information about a client only:

    1. (1)

      (1) For the purpose of serving the client's interest, unless it is information the client has specifically requested not be disclosed;

    2. (2)

      (2) To the extent it appears necessary to prevent or rectify the consequences of a deliberately wrongful act by the client, except when the lawyer has been employed after the commission of such an act to represent the client concerning the act or its consequences;

    3. (3)

      (3) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client, or to establish a defense to a civil or criminal claim or charge against the lawyer based upon conduct in which the client was involved; or

    4. (4)

      (4) As otherwise permitted by law or the Rules of Professional Conduct.

American Bar Association, Commission on Evaluation of Professional Standards, Model Rules of Professional Conduct (Discussion Draft, Chicago: American Bar Association, Jan. 30, 1980).Google Scholar

9 See “Definitions” preceding the individual Model Rules, id. at 6.Google Scholar

10 See Comment following Model Rule 1.7, id. at 23.Google Scholar

11 The relevant portions of these Rules are: 3.1 Candor Toward Tribunal Google Scholar

A lawyer shall be candid toward a tribunal ….Google Scholar

  1. (b)

    (b) Except as provided in paragraph (f), if a lawyer discovers that evidence or testimony presented by the lawyer is false, the lawyer shall disclose that fact and take suitable measures to rectify the consequences, even if doing so requires disclosure of a confidence of the client or disclosure that the client is implicated in the falsification.

  2. (c)

    (c) If a lawyer discovers that the tribunal has not been apprised of legal authority known to the lawyer that would probably have a substantial effect on the determination of a material issue, the lawyer shall advise the tribunal of that authority.

  3. (d)

    (d) Except as provided in paragraph (f), a lawyer shall disclose a fact known to the lawyer, even if the fact is adverse, when disclosure:

    1. (1)

      (1) Is required by law or the Rules of Professional Conduct; or

    2. (2)

      (2) Is necessary to correct a manifest misapprehension resulting from a previous representation the lawyer has made to the tribunal.

  4. (e)

    (e) Except as provided in paragraph (f), a lawyer may apprise another party of evidence favorable to that party and may refuse to offer evidence that the lawyer believes with substantial reason to be false.

  5. (f)

    (f) A lawyer for a defendant in a criminal case:

    1. (1)

      (1) Is not required to apprise the prosecutor or the tribunal of evidence adverse to the accused, except as law may otherwise provide;

    2. (2)

      (2) May not disclose facts as required by paragraph (d) if doing so is prohibited by applicable law;

    3. (3)

      (3) Shall offer evidence regardless of belief as to whether it is false if the client so demands and applicable law requires that the lawyer comply with such a demand…

3.12 Advocate in Nonadjudicative Proceedings Google Scholar

  1. (a)

    (a) A lawyer representing a client before a legislative or administrative tribunal in a nonadjudicative proceeding shall deal fairly with the body conducting the proceeding and with other persons making presentations therein and their counsel.

  2. (b)

    (b) A lawyer in such a proceeding shall:

    1. (1)

      (1) Identify the client on whose behalf the lawyer appears, unless the identity of the client is privileged;

    2. (2)

      (2) Conform to the provisions of Rules 3.1 and 3.4.

4.2 Fairness to Other Participants in Negotiation Google Scholar

  1. (a)

    (a) In conducting negotiations a lawyer shall be fair in dealing with other participants.

  2. (b)

    (b) A lawyer shall not make a knowing misrepresentation of fact or law. or fail to disclose a material fact known to the lawyer, even if adverse, when disclosure is:

    1. (1)

      (1) Required by law or the Rules of Professional Conduct; or

    2. (2)

      (2) Necessary to correct a manifest misapprehension of fact or law resulting from a previous representation made by the lawyer or known by the lawyer to have been made by the client, except that counsel for an accused in a criminal case is not required to make such a correction when it would require disclosing a misrepresentation made by the accused.…

Id. Google Scholar

12 See ABA Formal Opinions 341, supra note 4, and 287 (June 27, 1953), American Bar Association, Opinions of the Committee on Professional Ethics with the Canons of Professional Ethics Annotated and Canons of Judicial Ethics Annotated 633 (Chicago: American Bar Foundation, 1967).Google Scholar

13 See note 7 supra. Google Scholar

14 See note 11 supra Google Scholar

15 Frankel, Marvin F., The Search for Truth–-an Umpireal View, 30 Rec. A.B. City N.Y. 14 (1975).CrossRefGoogle Scholar

16 Rule 1.13 provides in part:Google Scholar

1.13 An Organization as the Client Google Scholar

  1. (a)

    (a) A lawyer employed or retained by an organization represents the organization as distinct from its directors, officers, employees, members, shareholders, or other constituents.

  2. (b)

    (b) If a lawyer for an organization knows that an officer, employee, or other person associated with the organization is engaged in or intends action, or a refusal to act, that is a violation of law and is likely to result in significant harm to the organization, the lawyer shall use reasonable efforts to prevent the harm. In determining the appropriate measures, the lawyer shall give due consideration to the seriousness of the legal violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization of the person involved, and the policies of the organization concerning such matters. The measures taken shall be designed to minimize disruption and the risk of disclosing confidences. Such measures may include:

    1. (1)

      (1) Asking reconsideration of the matter;

    2. (2)

      (2) Seeking a separate legal opinion on the matter for presentation to appropriate authority in the organization;

    3. (3)

      (3) Referring the matter to higher authority in the organization, including, if necessary, referral to the highest authority that can act in behalf of the organization as determined by applicable law.

  3. (c)

    (c) If, despite the lawyer's efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is Likely to result in substantial injury to the organization, the lawyer may take further remedial action, including disclosure of client confidences to the extent necessary, if the lawyer reasonably believes such action to be in the best interest of the organization. …

Rules, Model, supra note 8.Google Scholar

17 See EC 5–18.Google Scholar