Lawyers' Duty of Confidentiality and Clients' Crimes and Frauds
40 Pages Posted: 5 May 2022
Date Written: April 13, 2022
Lawyers’ ethical duty of confidentiality is a fundamental aspect of the attorney-client relationship. It is also an extraordinarily broad duty; indeed, it is broader than the attorney-client privilege. So extensive a duty of confidentiality is necessary to encourage clients to trust their lawyers and to be candid with them. The public also benefits from lawyers’ duty of confidentiality, as a comment to Rule 1.6 of the ABA’s Model Rules of Professional Conduct explains: “Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.”
As broad as lawyers’ duty of confidentiality may be, however, it is not absolute. There are times when the usual public interest in lawyers’ preservation of client confidentiality may yield to a greater interest in preventing, mitigating, or rectifying clients’ unlawful conduct. Model Rule 1.6(b)(2) accordingly permits a lawyer to disclose a client’s information “to prevent the client from committing a crime or 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.” Model Rule 1.6(b)(3) permits a lawyer to reveal a client’s information “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.”
Lawyers’ ability to disclose information related to clients’ representations where they reasonably believe or even know that the clients are planning, engaging in, or have committed financial crimes or frauds is an incredibly important issue. Absent the ability to make such disclosures, lawyers may face significant civil and criminal liability, as well as professional discipline, arising out of clients’ dishonest schemes. At the same time, the circumstances in which lawyers may disclose clients’ malfeasance are narrow, often difficult to appreciate, and require lawyers to make nuanced judgments. This Article examines in practical fashion lawyers’ critical but limited ability to disclose clients’ information to prevent, mitigate, or rectify clients’ financial crimes and frauds.
Keywords: professional responsibility, professional liability
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