[Beginning at page 131, Drinker discussed Canon 37 of the ABA Canons of Professional Ethics, about the duty of a lawyer to preserve a client's confidences. On page 133, he quoted from an ABA opinion that the canon's purpose was "to state with particularity important applications and exceptions, and that it was not intended to exclude other well-recognized exceptions." On pages 137 to 139, Drinker summarized, under the heading "When Disclosure Is Proper" the judicial decisions and ethics opinions to that time that had recognized many exceptions to confidentiality. The following excerpt is that full section, without its 28 footnotes, but with selected passages emphasized. For a scanned PDF (719 KB) copy of the Drinker text pages dealing with Canons 37 and 41, click here.]
 

When Disclosure Is Proper

        Although Canon 37 contains no specific exception covering communications where disclosure to the authorities is essential to the public safety, such is necessarily implied. Accordingly, where a lawyer has confidential information from a foreign government with which the United States is at war, he should reveal to the proper authority the fact that he has received it, and abide the latter's decision; and he may tell of subversive activities of his client, the common defense transcending Canon 37.

        A lawyer may disclose the whereabouts of a client jumping bail. The lawyer for an administrative body may reveal gross abuses by it after having advised the highest officials and refusal by them to act, the lawyer thus invoking public opinion to remedy the situation.

        He may advise the Industrial Commission of the nature and extent of injuries to the plaintiff in a case conducted by him, the plaintiff having falsely testified as to them.

        A disclosure of confidential information may be made where necessary to prevent a contemplated crime, or fraud.

        Canon 29 is subject to Canon 37. Where a fraud is possible but not clear, the lawyer should withdraw. A lawyer should inform the surrogate [a probate judge] of the proposed concealment by his client-executor of an existing grandchild from whom his client proposes to abstract [wrongly deny] the estate; but he may not tell his client's husband of her plan to cut him out of her will as to property in her name but the result of their joint labors. However, one holding a former will of a wife who had agreed to a mutual disposition of property belonging to her and her deceased husband was held bound to disclose this when she tried to avoid her obligation.

        A lawyer may not inform the collector of a failure by his client to disclose income, or of his client's address; or reveal to the authorities that his client paid for a promise of preferential treatment after induction.

         The exception in the second paragraph of the Canon relative to the announced intention of his client to commit a crime includes a fraud on others but not a crime or fraud which has been completed. The lawyer may make such disclosures as are necessary to protect himself against false accusations, or to protect his rights, including reasonable compensation, but may not in order to avoid being sent to jail by the judge. He may not use confidential information as to his client's funds to enable him to collect his fee, but may use information not obtained from the client, and in suing one client for a fee, may use non-confidential information obtained from another client.

         Where a lawyer's client has aided in the prosecution of charges against him, the lawyer may reveal such confidences as are material to the proceeding.

          The privilege is not binding where the client either conspires with the lawyer or deceives him, or falsely accuses him, but is not forfeited merely by the client's acting in bad faith to his own creditors. One defamed by a former client whom he is suing for slander may, in order to protect his good name, advise other clients in the same trade of the true facts.

        Before making a permissible disclosure he should, if possible, notify his client of his intention to do so and give him reasonable opportunity himself to disclose the information or to show that the lawyer's information is incorrect or irrelevant.

        It has been held that damages may be collected by one injured by a gross breach of a lawyer's duty not to divulge confidential communications.

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