Promoted 2002 Washington Legislation (HB 2503 and HB 2504):

1.  House Bill 2504, drafted by Doug Schafer and introduced 1/17/02 by Representatives Marc Boldt and Sarah Casada, will enact a Truth In Lawyering Act (TILA) (unofficial title) for Washington lawyers to require:

        (a) That lawyers must provide clients with written contracts describing the scope and financial terms of their engagement, and that lawyers must use small claims court to resolve any financial disputes if the disputed terms were not agreed to by the client in a contract.

        (b) That lawyers must disclose any referral fee or other kickback that they expect to receive when referring a client to another lawyer or law firm; and if they fail to disclose it the client after discovering it may sue either lawyer to recover the amount of the referral fee or other kickback that passed between them. (Click here to read about lawyer referral fees.)

        (c) That lawyers must provide clients a disclosure statement or brochure (presumably pre-printed by the state bar or the state courts administrative office) that informs clients about Washington's versions of the attorney-client privilege and the lawyers' duty of confidentiality, what those doctrines mean, the circumstances under which those doctrines do apply and do not apply (including the crime-fraud exception), the steps that clients and lawyers must take to preserve the client's claim of privilege, and the exceptions to confidentiality (including lawyer disclosures to prevent crime by, or to collect fees from, a client).

2.  House Bill 2503, drafted by Doug Schafer and introduced 1/17/02 by Representatives Marc Boldt and Sarah Casada, will enact a Conduct Of Lawyers Act (COLA) (unofficial title) that delegates to the state supreme court the power to enact and enforce rules of professional conduct for Washington lawyers, but directs that no rule may prohibit a lawyer from voluntarily revealing client information that the lawyer reasonably believes necessary for the following purposes:

        (a) To warn that the client or a third person has made, and still poses, a true and real threat to harm another person, whether or not the threatened person has notice of the potential danger.

        (b) To prevent the probable death or substantial bodily harm of any person.

        (c) To prevent the client from committing any crime.

        (d) To prevent the client from committing a serious fraud that is furthered by the lawyer's services.

        (e) To prevent, mitigate or rectify the damages of a victim of a client's crime or fraud that was furthered by the lawyer's services.

        (f) To report child abuse or neglect to authorities pursuant to Washington law.

        (g) To report elder or vulnerable adult abuse, abandonment, neglect, or financial exploitation to authorities pursuant to Washington law.

        (f) To report serious misconduct by a lawyer that warrants suspension or disbarment.

        (g) To report serious misconduct by a judge that warrants suspension or removal from office.

        (h) To report intentional lawlessness by any executive state officer or elected official.

Historical Truths:

"Now, it is evident that, under our constitution, this board may exercise such delegated legislative powers as have been granted to it, which are the examination of applicants for admission to the bar and the prescribing of certain rules; and they are competent to exercise the administrative powers conferred upon them of investigating the conduct of attorneys who have been admitted, to ascertain whether or not they should be permitted to continue to practice their profession, in order that the mischiefs sought, to be remedied by the legislature may be remedied and prevented, and may initiate complaints in such cases and hear the evidence, and make reports and findings thereon. But the board is not a court and cannot exercise the functions of a court, except the limited function of passing upon evidence received by them and reporting it. They can make no order striking the name of an attorney from the rolls or disbarring him from practice."

        The 1908 ABA Canons of Professional Ethics were amended in 1928 to add Canons 33 to 45. Two of the new canons were very significant:

        In 1953, the leading reference text, Legal Ethics, described the many exceptions to confidentiality that courts and ethics committees had recognized. Click here for an excerpt.  

        In 1961, a scholarly article in the ABA Journal addressed the crime-fraud exception to attorney-client privilege and noted that lawyers had an ethical duty to report client lawlessness when that exception applies. Click here to read it.

        In In re Levy, 23 Wn.2d 607 (1945), the Washington State Supreme Court recognized, at page 614, that "the legislatures of all of the states, including our own, have repeatedly passed acts regulating admissions to the bar." The court approved such  actions by legislatures, saying "under the police power, they provide minimum requirements. But the legislative power cannot be exercised in such a way as to deprive the courts of the power to require additional qualifications."

        In Short v. Demopolis, 103 Wn.2d 52 (1984), the Washington State Supreme Court held that the application to lawyers of the state's Consumer Protection Act did not violate the Court's claimed "separation of powers" doctrine, quoting favorably the Washington State Attorney General's conclusion that "the separation of powers doctrine does not create an impenetrable barrier through which the Legislature may not venture. Rather, the exclusive power of the court lies in determining who may practice law and who, once admitted, shall be suspended or disbarred from such practice. The corollary ... is that the Legislature may constitutionally act with regard to attorneys so long as its enactments do not affect or purport to take away the court's power to admit, suspend, or disbar."
 

Links:

Washington State Legislature.

Washington State Bar Association.

Washington State Supreme Court's Rules of Professional Conduct (RPC).
        including its Rule 1.6 on Washington lawyers' Duty of Confidentiality.

American Bar Association's Model Rules of Professional Conduct (MRPC).
        including its Model Rule 1.6 on lawyers' Duty of Confidentiality.

ABA Ethics 2000 Commission's Final Report recommending MRPC changes, among
       the most significant are the changes to Model Rule 1.6 on lawyer confidentiality.

ABA Task Force of Corporate Responsibility - Final Report released April 29, 2003, also
       recommmending public interest exceptions to the ABA Model Rule on confidentiality.

Compilation of Historic Lawyer "Ethics" Rules on Lawyers Acting to Prevent or Rectify
       Client Crime or Fraud

On Child Abuse Reporting by Lawyers:

        Washington Child Abuse Reporting Law (RCW Chapter 26.44). & Reporting Hotline.

        Journal Article by U.W. Law Prof. Rob Aronson, "What About the Children? ..."[PDF]

        National Clearinghouse on Child Abuse.

On Elder/Vulnerable Adult Abuse Reporting by Lawyers:

        Washington Vulnerable Adult Abuse Reporting Law (RCW Chapter 74.34). & Hotline. 

        National Center on Elder Abuse.

        Congressional Hearing Report (S. Hrg. 107-105) -- Saving our Seniors:
           Preventing Elder Abuse, Neglect, and Exploitation, June 14, 2001

        Journal Article by Law Prof. Pat Longan Urging Mandatory Lawyer Reporting.[PDF]

On Reporting Corrupt Governmental Officials by Lawyers:

        Government Officials and Lawyers May Not Hide Wrongdoing by Claiming Privilege.

        To Kill a Messenger -- For Reporting a Corrupt Judge!

        California Whistleblower Laws Do Not Shield Government Lawyers, per AGO.

        California 2006 Assembly Bill 1216: Exposing Corrupt Government     2/12/06 news article

        Hawaii Rules of Professional Conduct, rule 1.6(c)(4) and (5).

On the Crime-Fraud Exception to Privilege/Confidentiality:

        Washington Judicial Opinions    California Judicial Opinions    Review of Common Law   Review of New Fed. Cases

        briefed to WA Bar hearing officer (12/99)   briefed to WA Supreme Ct (9/01)(p.17-29) 

On Lawyers Warning of Client and Third Party Threats of Violence:

        Washington Judicial Opinions        California Judicial Opinions

Lawyer Confidentiality Rules of Selected Other States      All 32 "Rectify Fraud" States

  New Jersey - Massachusetts - Maryland - Virginia - Wisconsin[PDF]   Connecticut[PDF]

        Ted Schneyer, Professionalism as Bar Politics: The Making of the Rules of Professional Conduct[PDF], 14 Law & Social Inquiry 677 (1989). [PDF searchable image file size: 3,919K] Law Professor Schneyer documents in great detail the self-serving agendas of various special-interest bar organizations that fabricated the ABA's Model RPC in 1979-83.

        Susan P. Koniak, The Law Between the Bar and the State[PDF], 70 N.C. L. Rev. 1389 (1992). [276K] An excellent article by Law Professor Koniak about the tradition of organized bars resisting legislatively and judicially mandated changes to their self-perceived professional norms, particularly their norm of nearly absolute confidentiality.

        R.W. Nahstoll, The Lawyer’s Allegiance: Priorities Regarding Confidentiality[PDF], 41 Wash. & Lee L. Rev. 421 (1984). [PDF searchable image file size: 2,354K] Critical article by a former president of the State Bar of Oregon, that never adopted the ABA's 1983 MRPC.

        Harry I. Subin, The Lawyer as Superego: Disclosure of Client Confidences to Prevent Harm[PDF], 70 Iowa L. Rev. 1091 (1985). [244K] Critical article by NYU Law Professor Subin. New York never adopted the ABA's 1983 MRPC.

        Lee A. Pizzimenti, The Lawyer's Duty to Warn Clients About Limits on Confidentiality[PDF], 39 Cath. L. Rev. 441 (1990). [162K] Law Professor Pizzimenti asserts that a lawyer "practices deception upon a trusting client when she misstates or refuses to disclose those circumstances that constitute exceptions" to the confidentiality rules.

        Fred C. Zacharias, Rethinking Confidentiality[PDF], 74 Iowa L. Rev. 351 (1989). [203K] Law Professor Zacharias challenges, from both theoretical and empirical bases, the organized bar's claimed justifications for strict confidentiality rules and discusses various negative effects upon society and upon lawyers of strict confidentiality rules. In Rethinking Confidentiality II: Is Confidentiality Constitutional?[PDF], 75 Iowa L. Rev. 601 (1990) [178K] Zacharias suggests the First Amendment protects a lawyer's morally-based "good citizenship" disclosures if contrary to a Bar's self-serving strict confidentiality rules. (p.629)

       Leslie C. Levin, Testing the Radical Experiment: a Study of Lawyer Response to Clients Who Intend to Harm Others[PDF], 47 Rutgers L. Rev. 81 (1994). [125K] Law Professor Levin surveyed New Jersey lawyers eleven years after the state's confidentiality rule change in 1982 to mandate reporting of a client's intent to kill or seriously harm another. The sky didn't fall, and clients continued to employ and confide in N.J. lawyers.

        Patrick E. Longan, Middle-class Lawyering in the Age of Alzheimer's: the Lawyer's Duties in Representing a Fiduciary[PDF], 70 Fordham L. Rev. 901 (2001). [49K] Law Professor Longan asserts that lawyers should be required to report a client's financial abuse of a vulnerable older adult, for "If the lawyer does not stop the malefactor, probably no one will."

        Robert H. Aronson, What about the Children? Are Family Lawyers the Same (Ethically) as Criminal Lawyers? A Morality Play[PDF], 1 J. Inst. Stud. Leg. Eth. 141 (1996). [35K]  Law Professor Aronson challenges the application of the criminal defense lawyer confidentiality rules to family law lawyers concerned about the welfare of children.

Telling Quotations: [absolute confidentiality serves lawyers, not society]

1982       "We have rejected one concept that the Kutak Commission apparently espouses, that lawyers have a general duty to do good for society that often overrides their specific duty to serve their clients." By Theodore I. Koskoff, President of the American Trial Lawyers Association, in the Preface to ATLA's alternative ethics code, The American Lawyer's Code of Conduct (1982). ATLA and allied groups at the 1983 ABA Convention defeated the Kutak Commission's proposed Rule 1.6 with its public interest exceptions to client confidentiality.

2001       "Academics have this lofty notion that lawyers should do good for society. But I'm not buying it. I don't think we should put the lawyers in a position where they have duties to the public, except in the case of death or bodily harm." By Lawrence J. Fox, former Chair of the ABA Litigation Section and of the ABA Standing Committee on Ethics and Professional Responsibility. Quoted by Sarah Boxer in "Lawyers Are Asking, How Secret Is a Secret?," The New York Times, Aug. 11, 2001, Arts Section.

2001       "The liability creating effect will occur when lawyers, who no longer will have the shield of Rule 1.6's prohibition on disclosure of confidential information to explain a failure to disclose where client fraud was involved ..." By Lawrence J. Fox (see previous quote) in his 2001 Minority Report opposing the ABA Ethics 2000 Commission Report's recommendation that lawyers be again permitted to disclose crime and fraud that a client had furthered using the lawyer's services. The change would have restored the confidentiality rules to substantially what they were before lawyers began in the 1970s re-writing their "ethics" rules to shield themselves from liability for failing to report their clients' ongoing lawlessness or dangerousness. The ABA delegates at its August 2001 convention rejected the change.

1983       "If you begin to open the door ... then the lawyer who does not make disclosure is exposed to very serious sanctions and liability because of the charge ... that he could have made disclosure." Statement by 1983 ABA Delegate L.G. Davidson in floor debate over the Kutak Commission's proposed Model Rule 1.6, later soundly rejected by the 336 delegates.

1991        "[A]dopting the [rectify-fraud confidentiality exception] proposal will surely expose lawyers to liability if they fail to reveal a client confidence in circumstances a claimant contends should have prompted disclosure.  Such lawyers are protected since they cannot reveal what they are prohibited from disclosing." Statement by 1991 ABA Delegate William Brennan in floor debate over the ABA Ethics Committee's re-submission of the Kutak Commission's proposed Model Rule 1.6(b)(2), once again rejected by the delegates.

1993         Describing the ABA's 1983 Model Rules' adoption, Law Professor Charles Wolfram wrote:

"The drafting of the Model Rules occurred at a time when lawyers were becoming alarmed and preoccupied with the risk of malpractice suits. What often seemed to prevail in the ABA House of Delegates was rather a thorough-going self-interest. [The house] rejected the proposal of the Kutak Commission to adopt a limited confidentiality rule, allowing (but not requiring) a lawyer to give warning of a client's intended harm to persons threatened by financial ruin as well as grave personal harm. The house was primarily moved by the plea that it was far more preferable to adopt an absolute confidentiality rule to protect client confidentiality. Not as a matter of sheer coincidence, such a sweeping rule would also permit lawyers to throw up an absolute doctrinal barrier against possible arguments in future malpractice litigation that lawyers who failed to exercise their discretion to disclose their client's wrongdoing acted wrongfully. The argument would be, of course, that anything but silence would have subjected the lawyer to the risk of disbarment. The hoped-for doctrinal move would be that a lawyer professionally prohibited from disclosing even plainly outrageous behavior of a client could not be held liable to a third person for complying with professional mandates."

1993        "If this rule were adopted ... it would create significant liability exposure for counsel. In a world in which lawyers are sued with ever increasing frequency, the fact that a lawyer had the discretion to disclose confidential information, and did not, will be no defense to the claim that if the lawyer had disclosed confidential information some harm or other could have been prevented." Lawrence J. Fox opposing a recommendation that Model Rule 1.6 be amended so lawyers for miscreant fiduciaries would have discretion to inform their harmed beneficiaries, made at the 1993 Fordham U. Law School Conference on Ethical Issues in Representing Older Clients. 62 Fordham L. Rev. 961, 998, 1448 (1994).

2002         In Mark L. Tuft, For Your Eyes Only: California’s duty of confidentiality is both more inclusive and more protective than the attorney-client privilege, Los Angeles Lawyer (Vol. 25, No. 9, Pg. 26, Dec. 2002) [PDF version], the author, a practising lawyer who's been active in state bar ethics committees, stressed that lawyers’ will be exposed to liability (based on a famous 1976 case named Tarasoff involving a psychotherapist) for failing to warn the victims of their clients’ lawlessness in the event that their self-serving and shielding ethics rule ever changes so as to permit lawyers to sound such humane warnings. (The San Diego County Bar even announced in 1990 (click here to see its formal opinion) that a lawyer ethically must let a witness be murdered rather than humanely warn him or the police that a client is heading his way to kill him.)  Mr. Tuft warns lawyers of their Tarasoff  liability exposure that he says arises from 1993 legislation that added a crime-fraud exception as Section 956.5 to California’s Evidence Code, and from the 2001 ABA-approved (over the California Bar’s strong objections) Ethics 2000 Commission change to Model Rule 1.6(b)(1) (very slightly expanding the “prevent death and substantial bodily injury exception” to the ABA's nearly absolute confidentiality rule), saying at page 30:

"Although the application of Tarasoff to lawyers has been heavily debated, in the 25 years since the case was decided, no court has held a lawyer to a similar duty of disclosure, particularly to a person who is not the lawyer’s client.  However, new ABA Model Rule 1.6(b)(1) and Evidence Code Section 956.5 could lead to an analogous liability for lawyers." [Webmaster: Note the absence of any human compassion for their clients' victims who lose their lives, their children, their financial security, etc. -- lawyers subordinate their natural human values like compassion to the mercenary mores of their chosen cult.]

1990        "It is imperative the legal profession demonstrates that what is good for the profession is good for the public. ... If it fails ... to do so, lawyers may face the twenty-first century as any other business -- subject to the whims of public opinion and the will of the legislative process." Admonition by Washington State Supreme Court Justice James M. Dolliver in "Law as a Profession: Will it Survive?" 26 Gonzaga Law Review 267, 274 (1990/91).
 

Media Coverage of This Lawyering Legislation:

        "Viewpoint" editorial in The News Tribune, Jan. 8, 2002, page B6.

Media Coverage of Lawyer Abuses of Secrecy:

        "Tobacco Lawyers and the Case For Cover-up Reform," by Stuart Taylor Jr. in The Atlantic Online, Feb. 13, 2001.  In 1979-83, Taylor covered the ABA Conventions and other legal matters for the New York Times. He now writes mainly for National Journal magazine.