1. Section B--Protecting Third Persons from Harm
by Client;
a. When client threatens physical
injury, and lawyer “reasonably” believes disclosure is necessary, Rule
1.6(b)(1) permits disclosure;
b. If lawyer does not reveal, it is
generally thought that lawyer cannot be disciplined under Comment [13]
to Rule 1.6.
c. Civil liability discussed, but not permitted
in Hawkins v. Kings County, and court notes that not likely without lawyer
knowledge beyond doubt and only if potential victim would not know of threat;
i. No case has, as yet, so held;
d. In re Gonella tells us that even when
court must order lawyer to reveal (thereby allowing lawyer to reveal),
court is reluctant to do so–this gives us idea of extent to which court
wants to protect attorney-client relationship;
e. Non-Physical Harm to Property or Financial
Interests;
i. We discussed a great deal of history
here, along with rules in several states;
ii. Current ABA Rule 1.6(b)(2) and (3)
permit, but do not require:
(1) First, the lawyer to reveal the
intent by the client to commit a crime that is reasonably certain to result
in property or financial damage to another PROVIDED the lawyer has been
used or is being used by the client to further that crime; AND/OR
(2) Second, past actions by the client
that are reasonably certain to result in property or financial damage to
another PROVIDED the lawyer has been used by the client to further the
crime or fraud;
iii. Fraud upon others, particularly when
done by a corporate client;
(1) Again, we discussed a number
of rules, but
(2) Current ABA Rule 1.6(b)(3), permits,
but does not require disclosure;
(3) Where the client is an entity
current Rule 1.13 also applies; if the corporate lawyer knew that
a member of the organization was acting in such a way as to violate an
obligation to the organization or under law, the lawyer is required to
proceed up the chain of command within the organization and, if the lawyer
has done so, and there is no change, the lawyer may reveal despite
the confidentiality provisions of Rule 1.6, but may only reveal what is
reasonably necessary to prevent substantial injury to the organization;
(4) Lawyer can always withdraw from
representation using “noisy withdrawal,” that is Lawyer who writes opinion
letter that is used by third parties and who then withdraws because client
is committing fraud and not following the lawyer's opinion is permitted
to advise creditors of client that lawyer no longer stands by prior opinion;