Exceptions to Confidentiality
Exceptions to the Duty of Confidentiality
- The duty of confidentiality is vital for clients to feel comfortable speaking with their lawyers.
- However, strict confidentiality can be dangerous if it risks harm to others or leads to the conviction of innocent individuals.
- The rules include exceptions to the duty of confidentiality to address these concerns.
Location of Exceptions to the Duty
- Most exceptions are found in Model Rule 1.6(b), but exceptions exist in other rules as well.
- The list of exceptions discussed in the lecture is not exhaustive and will be updated throughout the semester.
- State rules regarding exceptions may vary significantly.
- It's essential to review Rule 1.6 thoroughly.
Exceptions Within the Definition of the Duty (Rule 1.6(a))
- Rule 1.6(a) contains the first two exceptions to the duty of confidentiality.
- Client Consent: A client can consent to the disclosure of confidential information (Model Rule 1.6A). The client can also consent to the lawyer taking reasonable measures to protect the information as well as consent to using information to their disadvantage (Rule 1.8).
- Implied Authorization: Disclosure is permitted when impliedly authorized to carry out the representation.
- Examples: disclosing information to a private investigator or disclosing confidential information needed to support a claim or negotiate a settlement.
Model Rule 1.14(c)
- Allows attorneys to disclose information to protect a client with diminished capacity from dangerous situations. This rule is an exception to the duty of confidentiality.
Limitations on Disclosure
- Any disclosure authorized by an exception must be limited to what is reasonably necessary to comply with the exception or advance its goal.
- Disclosing too much information can violate the rule, even if an exception applies.
Straightforward Exceptions (Briefly Mentioned)
- These exceptions are relatively common and straightforward:
- To secure legal advice about the lawyer's compliance with the rules.
- To establish a claim or defense in a case involving the lawyer and the client.
- To comply with a statute or court order.
- To determine if a conflict of interest exists (under limited circumstances).
Key Exceptions in Model Rule 1.6 (b)(1), (2), and (3)
- These exceptions are often subject to considerable discussion and debate.
Model Rule 1.6(b)(1): Preventing Death or Substantial Bodily Harm
- Allows a lawyer to disclose confidential information to the extent necessary to prevent reasonably certain death or substantial bodily harm.
- Some states mandate this disclosure.
- This exception balances client confidentiality with the protection of human life and safety.
Model Rule 1.6(b)(2): Preventing Substantial Financial Injury
- Permits disclosure to prevent substantial financial injury to another.
- More limited than the exception in 1.6(b)(1).
- Requires that the client is using or has used the lawyer’s services to commit the crime or fraud.
Model Rule 1.6(b)(3): Preventing, Mitigating, or Rectifying Financial Harm
- Allows disclosure of information related to past conduct to prevent future harm.
- Allows disclosure to mitigate or rectify past fraud, which was controversial when adopted in 2003.
- The objection is that it allows disclosure to fix a financial harm that has already occurred, while similar disclosure is not allowed for physical or personal harm.
- This raises questions about the profession's priorities.
- The use of this exception is limited due to the elements that need to be met and the fact that it is permissive.
Jurisdictional Variations
- Few jurisdictions have adopted the ABA versions of rules 1.6(b)(2) and (3) as written.
- Some jurisdictions have different versions with variations regarding:
- Disclosure to prevent any crime or fraud.
- Disclosure regardless of whether lawyer's services were involved.
- Disclosure to prevent criminal but not fraudulent acts.
- Disclosure to prevent anyone from committing a crime or fraud.
- Mandatory disclosure.