ABA-515
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| (analyzing lawyers’ ability to disclose client confidences if they are victims of their clients’ criminal conduct; HYPOTHETICALS: describing several possible hypothetical situations in which clients victimize lawyers: (1) a foreign client hires the lawyer for a collection matter, but the debtor’s payment to the lawyer is discovered to be fraudulent after the lawyer has already transferred the expected amount to the client (this scam can succeed because a bank can “clear” a check and make funds available months before the bank “collects” those funds or discovers the fraud); (2) in a similar situation, the lawyer discovers the fraudulent scheme before it can be consummated; (3) a lawyer is a victim of or a witness to a client’s shooting; (4) a visiting client steals the lawyer’s wallet from her office; CONFIDENTIALITY DUTY’S APPLICATION AND EXPLICIT EXCEPTIONS: explaining that (1) in the first scenario, there may not be a bona fide client or prospective client relationship formed, thus freeing the lawyer to disclose the fraud; (2) in rare circumstances, information relating to the crime may not be “information relating to the representation” deserving of protection; but warning that “Rule 1.6 (a) covers substantially more information then does the attorney-client privilege, which ordinarily protects only confidential communications between the client and the lawyer or their respective agents;” turning to Rule 1.6 (b)’s exceptions, explaining that since 1980 the ABA Model Rules have expanded the number of permissible disclosures from 3 to 7; noting that a lawyer might rely on: Rule 1.6 (b)(1) if the lawyer reasonably believes disclosure is necessary “to prevent reasonably certain death or substantial, bodily harm;” Rule 1.6 (b) (3) 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” (this exception might apply if the lawyer was victimized by the client’s financial crime and there were other possible victims - but not in the four hypotheticals described above); Rule 1.6 (b)(5) to “establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client” (this exception “would not justify initially reporting to law-enforcement authorities,” but might apply in a later civil claim); IMPLICIT CONFIDENTIALITY DUTY EXCEPTIONS: noting that the Model Rules are “rules of reason“ in explaining that lawyers might rely on an “implicit exception” to correctly “assume that, if a client commits a crime against them or their employees or associates, they can report the crime to law enforcement authorities and appropriate others;” listing various implicit exceptions later codified: (1) lawyers’ “widely assumed” freedom to “seek advice from legal experts outside their law firms regarding compliance with the professional conduct rules“ - even before the ABA’s 2002 adoption of Rule 1.6 (b)(4); (2) ABA LEO 455 (10/8/09)’s acknowledgment that lawyers “moving from one firm to another” may disclose certain information about their representations, which was eventually codified in Rule 1.6 (b)(7); recognizing two more implied confidentiality duty exceptions that have not been codified: (1) because lawyers would be “too easy a target of clients’ crimes ” if they were required “to remain silent when their clients abuse the relationship by committing a crime against the lawyer,” explaining that an implied confidentiality exception applies in that situation, and cleverly noting that “lawyers may metaphorically take a bullet for the client, but they cannot reasonably be expected to take a bullet from the client and to keep quiet about it;” (2) because it “would be unreasonable to conclude that a lawyer may report when the lawyer is personally a victim of a client’s criminal act but not when the lawyer witnesses a crime against someone associated with the lawyer or related to the lawyer like a staff member of the lawyer firm or against someone such as a family member,“ recognizing an implied confidentiality duty exception allowing that disclosure – but “only to the extent the disclosure of information is reasonably necessary”) |