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Professional Responsibility DISCIPLINARY I. Self-defense: 1.6b2, b5' A. Client v. lawyer (e.g., malpractice) B. Lawyer v. client (e.g., fee) C.

Third party v. lawyer: li, Meyerhofer v. Empire Fire and Marine Insurance, (2d Cir, 1974) (law firm associate resigned to protest omission in securities prospectus; when subsequently named as defendant in private damage action, tells story to plaintiffs and SEC; held: associated acted properly) II. Third-party interests: Future Acts A. Rules vary. E.g: I. CA 3-100 [MR 1.6b2, pre-2003]: exception to confidentiality for information necessary "to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm" 2. ABA MR. 1.6b [2003]: exception to confidentiality for information necessary: to prevent reasonably certain death or substantial bodily harm 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 in furtherance of which the client has used the lawver's services. 3. New York MR 1.6(b): A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary: (I) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime; B. Issues I. Future (uncompleted?) acts Reporting crimes (IRS) Pollution Fugitive 2. Criminal acts CA and NY [unless death or bod injury] req criminal act New MR any harm-causing act 3. Acts by client Req by CA always and NY if financial harm 4. Imminent harm CA requires 5. Lawyer belief ("reasonably believes, "reasonably certain") 6. Nature of harm NY: any criminal harm CA:: "death or substantial bodily injury" ABA: bodily harm or, of in connection with lawyer's work, financial harm Many state MRs: bodily harm or financial injury CA's confidentiality rule does not mention the self-defense exception, but there is common law authority for such an exception. LA County Bar Ass'n Formal Op. 396 (1982); General Dynamics v. Superior Court (CA 1994). See the CA RPC 3-100 "Discussion", par. 13 (rule does not "preclude reliance upon any other exceptions [to confidentiality] recognized under Califomia law."). RULES ON CONFIDENTIALITY

7. Information "necessary" to prevent 8. Disclosure permissive under ABA, CA, NY and most states, but mandatory in a few (N.J., Wisc., Va., Fla.) 1Il. Third party interests -- Past Acts: Rectification Lawyer's Services Used. of Fraud on Private Party Where

A. New ABA MRs [not enacted in CA or NY] (I) 1.6b3: Lawyer may disclose to 'mitigate or rectify substantial Inlury 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 and in furtherance of which the lawyer's services have been used." (2) 4.1 b: Lawyer must disclose material fact where "necessary to avoid assisting a criminal or fraudulent act by the client [if permitted by 1.6].,,2 B. CA and pre-2003 ABA MRs [still widely enacted] make no explicit exception for rectification of past fraud.' However, there may be implicit penn iss ion to take make limited disclosures: Old MR 1.6, drafters' comments, par. 15: "[This rule does not prevent] the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like." (Similar language now appears in MR 1.2, comment, par. 10.) ABA Formal Op. 92-366: Where lawyer has innocently assisted with transaction she now knows to be fraudulent, ifthere is "continuing reliance" by the victim on any representation by the lawyer, lawyer may disavow it, for example, by writing "We no longer stand by our opinion." C. New York 1.6b3 codifies "noisy withdrawal": Lawyer may disclose otherwise confidential info "to the extent implicit in withdrawing a written or oral opinion or representation previously given by the lawyer and believed by the lawyer still to be relied upon by a third person where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud." -- what can be disavowed? (opinion, rep., document) -- what is "continuing reliance"? IV. Fraud on Tribunal A. ABA and NY 3.3 require lawyer to make disclosures to tribunal necessary to rectify client frauds. Duty terminates at "the conclusion of the proceedings." B. CA does not have 3.3 but does have Rule 5-200A: "In presenting a matter to a tribunal, a member ... Shall employ, for the purpose of maintaining the causes confided to the member, such means only as are consistent with truth".

See Drafters' Comment, par. 3: "Ordinarily, a lawyer can avoid assisting a client's crime or fraud

by withdrawing _... In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted a client's crime or fraud." 3 Old ABA 4.3 [still enacted in some states] provided in 4.1 that the lawyer should make disclosures needed to rectify past frauds in which her services were used "unless disclosure is prohibited by Rule 1.6." Given the broad definition of confidentiality in old 1.6, disclosure would virtually always be prohibited; so the exception swallowed the permission.