Week 2 - A Whistleblower Exception to Confidentiality: “Revealing the Intent to Commit a Crime or Fraud"

Client Whistleblowing Three different aprroaches

May reveal, must not, must

Roadmap

1. Start with 1.6 - permiessive

2. 1.2(d) - must, consider alongside 4.6, think about comments 10

3. 4.1(b) - must, expressing limited by 1.6, if triggered, 1.6 turns into must, withrdaw, if not enough, notice of withdrwal and disaffirmation, think about comment 3

4. 1.13, reporting up within the organization is a must, reporting outside is permissive, rule trumps 1.6

5. 3.3

6. 1.4 in toto, 1.4(a)(5)

7. 1.16, must in (a)(1), (4), permissive in (b)(2)-(4)

8.4 underlies all theses rules, If you don’t or can’t blow the while on a miscreant

Rule 1.13: Organization as Client

Comment 34, A lawyer who represents a corpation or other organization does not, by virtue of that represtation, necessarily represent any constiuent

Rule 1.13(b)

Must report up, “knows” “violation of a legal obligation” “violation of law” “likely” “substantial injury to the organization” “shall proceed as reasonably necessary” “shall refer matter to higher authority” “the highest authority”

Cmt 3, decision by constituents must be accepeted by the lawyer “including ones" entailing serious risk” “lawyer cannot ignore the obvious”

Rule 1.13 (c)

May report out,

(1) “the highest authoirty” “insists upon or fails to adress” “clearly a violation of law”

(2) “reasonably believes” “reasonably certain” “substantial injury to the organization” “may reveal information relating to the represtnation whether or not Rule 1.6 permits” “

Comment 6

Exception to 1.13c

Does not apply if lawyer was hired to defend to organization

Condition discharged or withdraws must notify the highest authority
*confidentaility continues even after withdrawal

Problem 2-9

• In informal conversation revealing confidential information, the counsel may still have to disclose to highest authority