[Return to .EvergreenEthics.com/E2K/]Compilation of Extracts from the Meeting Minutes
of the ABA Ethics 2000 Commission concerning
Model Rule 1.6: Confidentiality of InformationSource of minutes: http://www.abanet.org/cpr/e2ktest.html
More information: http://www.abanet.org/cpr/ethics2k.html
Ethics 2000 Commission's final Rule 1.6 proposal: http://www.abanet.org/cpr/e2k-rule16.html
Its March 23, 1999, public discussion draft of Rule 1.6: http://www.abanet.org/cpr/e2k/rule16draft.htmlNEW: directory of of the preliminary Rule 1.6 drafts, downloadable (from ABA staff 3/18/03)
Extract from Ethics 2000 Meeting Minutes, January 30-31, 1998 at Nashville, Tennessee
Source: http://www.abanet.org/cpr/013098mtg.htmlIII. Model Rule 1.6
Proposed Rule 1.6(b):
(b) A lawyer shall not [knowingly][intentionally] reveal information relating to the representation of a client by the lawyer or by a law firm with which the lawyer is associated, unless1. “information relating to representation of a client”(1) the client consents after consultation with the lawyer; or
(2) the client has impliedly authorized the lawyer to make such disclosure in order to carry out the representation of the client; or
(3) the disclosure is for a proper professional purpose, the lawyer reasonably believes that there is no significant risk that the disclosure will [materially] disadvantage the client, and the client has not prohibited the lawyer from making the disclosure in question; or
(4) the disclosure is permitted by paragraph (c) or required by paragraph (d).Prof. Pierce began the discussion of Rule 1.6 by asking the Commission to consider whether any change should be made in the terminology describing the type of information covered by the Rule. Prof. Pierce pointed out several variations on the Model Rule format including the ALI Restatement and the Model Code. The Commission discussed whether the current Rule is difficult to understand and whether it is being followed in practice. The Commission favored keeping the current language and providing greater explanation in the Comment. The Commission also agreed that the definition of lawyer should clarify that it includes partners, associates, temporary lawyers, lawyers in an "of counsel" relationship, and law firms.
2. “knowingly” or “intentionally”
The Commission discussed whether to add an element of knowledge to the Rule. One member pointed out that the use of “knowingly” in the Code was deleted because lawyers have a fiduciary duty to their clients. Only one Commission member favored use of the word “knowingly.” During the discussion it was noted that imputation does not apply in Rule 1.6. One member suggested that the Commission may want to consider creating a new Rule on temporary lawyers and recommended that the Commission obtain more information about this new phenomenon.
3. “the client consents after consultation”
The Commission discussed the definition of “consultation,” and that it must be consistent throughout the Rules. It was suggested that the definition of consultation should include “information and advice.” Mr. Smith pointed out that the current standard is difficult for disciplinary counsel to enforce and provides the least amount of public protection of all the alternatives. He felt the consent should be in writing. Other members suggested that this area might be appropriate for a “best practices” comment. Prof. Pierce stated that his next draft will maintain the same black letter language and will include a comment on best practice stating that the consent should preferably be in writing. He will also amend the definition of “consultation” to include “advice.” [The Commission later decided during the discussion of Rule 1.7 to use the term “informed consent.” See discussion under IV.2.]
4. “disclosures impliedly authorized to carry out the representation” The Commission reviewed Prof. Pierce’s proposed redraft which reads: “the client has impliedly authorized the lawyer to make such disclosure in order to carry out the representation of the client.” Several members objected to the change because implied authorization does not come only from the client. Others felt the Rule should be more client-oriented by deleting the word “impliedly.” One member pointed out that “implied authorization” does not include particularly sensitive material where client consent would be indicated. The Commission concluded that the black letter Rule should not change but that the Comment should elaborate on the necessity to discuss certain types of things with the client. It was also noted that the proposed paragraph (a) [which has not yet been discussed] would explain the need to consult with the client about the lawyer’s obligations.
5. proposed subparagraph (b)(3): “proper professional purpose”
Prof. Pierce explained that the ALI Restatement includes an exception for proper professional purpose. He asked if the Commission wanted to include a similar provision, though not as broad. The Commission discussed what would be covered by such an exception, such as a lawyer seeking ethics consultation from another lawyer, or a lawyer disclosing his client list to a prospective employer. Several members questioned how this type of disclosure/consultation is justified under the current Rules and the scope of the permitted disclosure. One member questioned what the word “proper” added to the meaning. Ms. Love informed the Commission that the Standing Committee on Ethics and Professional Responsibility is drafting an ethics opinion on ethics consultation. One member cautioned that “mentor” relationships with other lawyers, such as the sharing of professional lore, should be treated differently from an actual lawyer relationship where a lawyer may seek consultation on a matter of professional ethics. Another added that any consultation for the benefit of the client should only be made with the consent of the client.
The Commission agreed that an exception in general terms for professional purpose should be added to subsection (c), where it would be constrained by the requirement of “reasonable necessity,” and should include an example (“such as conflicts of interest or obtaining legal advice”) which limits the generality of the Rule but leaves room for other situations to be covered. In addition, the comment should mention that when a lawyer retains another lawyer to provide advice on a matter, the second lawyer becomes burdened by the fiduciary responsibilities to the first lawyer’s client.
6. proposed subparagraph (b)(4): “the disclosure is permitted by paragraph (c) or required by paragraph (d)
Prof. Pierce indicated that he wished to delete this proposal and the Commission concurred.
7. disclosure of information “generally known”
Prof. Pierce advised the Commission that the ALI Restatement exempts “information that is generally known” from its definition of “confidential information.” One member pointed out that confidentiality is driven by the nature of the relationship not by the nature of the information. Another added that this is a client protection rule, not a lawyer protection rule. The Commission was opposed to adding this exemption to the Model Rules.
Extract from Ethics 2000 Meeting Minutes, April 17-18, 1998 at Wilmington, Delaware
Source: http://www.abanet.org/cpr/041798mtg.htmlVI. Rule 1.6
The Commission decided that the title of the Rule should not be changed.
Comments
The Commission discussed proposed Comments [3] - [6] regarding information relating to representation of a client. Several members felt that the proposed Comments were too broad. A member suggested that the Comment needed to explain the current standard better and to get across to practicing lawyers that this is not just privileged information. She thought that the current "whatever its source" seems to get this across.
There was discussion about the need to have a clear statement about the distinction between privilege and confidentiality. The Commission agreed that the Comment [5] of the current Model Rules could be placed earlier. A member suggested that the Comment say that it is not expanding or contracting the scope but trying to explain. The Commission agreed to replace the proposed Comments [3] - [6] with a slightly expanded version of the current Comment [5].
The Commission next discussed the two choices for proposed Comment [10]. The Commission agreed that there should be no more than a brief statement to the effect that there is no imputation in Rule 1.6.
Professor Pierce asked the Commission to review Comments [15] - [17]. A member suggested that everything about communication should be in one place (he would prefer in 1.4). Professor Pierce noted that he and Professor Moore are working on a definition of informed consent. Another member pointed out that lawyers need to worry about whether consent is impliedly authorized if information would disadvantage the client or significantly advantage the lawyer. She suggested that the last sentence of [16] be moved up to the end of the language in the current Comment [7] and that the rest of [16] be deleted.
The Commission agreed that the discussion on multiple clients should be expanded and placed in a separate Comment. One member noted that this area is a problem.
A member suggested that the discussion of organizational clients should be in Rule 1.13.
Rule 1.6(b)(2) & (b)(3)
(b) Unless the client gives informed consent, or the disclosure or use is permitted by paragraph (c) or required by paragraph (d), a lawyer shall notThe Commission agreed with the inclusion of 1.6(b)(2), which was previously 1.8(b).(1) reveal information relating to the representation of a client, except for disclosures that are impliedly authorized in order to carry out the representation; or(2) use such information to the disadvantage of a client; or
(3) use such information for the advantage of the lawyer or another person, unless the information is generally known.
The Commission discussed the need for paragraph (b)(3). Some members were concerned that a lawyer could take advantage of the exception in the wrong way. Others felt that the issue should be discussed as part of loyalty or fiduciary duty. The Commission agreed that not everything that is public is generally known. A member noted that there is often a difference of opinion regarding disadvantage to client; she recommended that the Comment say if there is any reasonable question of disadvantage, the lawyer must ask. The Commission agreed to delete (b)(3) and to mention this in the Comment with a cross reference to Rule 8.4.
Rule 1.6(c)(1) & (c)(2)
(c) Unless prohibited by other law, a lawyer may reveal information relating to the representation of a client as permitted by Rules ___, ___, and ___ or to the extent that, the lawyer reasonably believes, after reasonable inquiry, that the disclosure of such information is necessarySeveral Commission members expressed concerns with paragraph (c)(2), including: the difficulty in determining what is “wrongful”; the effect on lawyer/client confidentiality; the harm to the client if disclosure is made; and the degree of certainty the lawyer must have before disclosure should be made under the proposed Rule.(1) to prevent loss of life, or serious illness or bodily harm, or criminal sexual abuse, that the lawyer believes, after reasonable inquiry, is likely to be suffered by a person; or(2) to prevent or rectify what the lawyer [knows] [has reason to believe] to be the wrongful imprisonment of a person; or
Looking at paragraph (c)(1), some members felt that adding “criminal sexual abuse” would make it necessary to add other things; others felt that “criminal sexual abuse” would be included under “serious bodily harm.” Professor Pierce noted that the Restatement says that :serious bodily harm” includes life-threatening illness and child sexual abuse.
A member expressed his concern about ranking all of the various types of harm and injustice.
The Commission voted to eliminate criminal sexual abuse. One member was opposed.
The Commission then voted to add “imminent” in paragraph (c)(1). One member was opposed. He asked how consequences can be imminent before a person acts. He pointed out that the death penalty could be far from imminent. Professor Pierce advised the Commission that the most recent Restatement draft has replaced the concept of “imminent” with “reasonably certain.” Staff will provide information on the latest Restatement draft at the next meeting.
The Commission voted to delete paragraph (c)(2). One member was opposed.
The Commission voted to change the language back to "imminent death or substantial bodily harm" in paragraph (c)(1).
The Commission then discussed whether the act had to be by the client and whether the act had to be criminal. The Restatement includes an act by anyone and does not require the act to be criminal.
Several members agreed that this area represents the essence of the tug between confidentiality and the public. The public would not appreciate a "rough justice" standard here. (i.e., by differentiating between acts by client and acts by others.) Another member argued that if there is some subset of noncriminal actions that can cause imminent death or serious bodily harm, then they should be included in the rule. Others agreed, saying that this is a widely criticized rule.
Rule 1.6(c)(3) & (c)(4)
(3) to prevent substantial injury to the financial or property interests of a person [or a class of similarly situated persons] if the lawyer reasonably believes, after reasonable inquiry, that there is a significant likelihood that such injury will result from past, continuing, or intended conduct of the client [or a third person] that the lawyer knows is criminal or fraudulent.Some members felt that paragraph (c)(3) creates a duty to 3rd parties to reveal information that may prevent financial harm. Others felt that the exception should only cover situations in which the lawyer's services were used.(4) to rectify or mitigate substantial injury to the financial or property interests of a person [or a class of similarly situated persons] that the lawyer [knows] [has reason to believe] has been caused by the criminal or fraudulent conduct of the client in a matter in which [the lawyer represented the client] [the lawyer’s services were utilized by the client in furtherance of the crime or fraud]; or
The Commission was unable to conclude its discussion of Rule 1.6. Chair Veasey requested that Commission members provide their individual comments to Professor Pierce at the end of the meeting.
Extract from Ethics 2000 Meeting Minutes, May 30-31, 1998 at Montreal, Quebec, Canada
Source: http://www.abanet.org/cpr/052998mtg.htmlVI. Rule 1.6
Paragraph (a)
The Commission approved the Reporter's rewording of paragraph (a)(2) to refer to use of information that is "reasonably likely to disadvantage" the client.
Paragraph (b)(1)
Several Commission members suggested that paragraph (b)(1) should not include any language to modify "death or substantial bodily harm." One member was concerned with the elimination of the word "imminent" because the term includes an element of timing. An observer pointed out that timing is taken into consideration because the lawyer may only disclose information if the lawyer believes it is reasonably necessary to do so. The Commission agreed that paragraph (b)(1) should include no modifying language.
Paragraph (b)(2)
One member suggested that paragraph (b)(2) be separated into one paragraph on prevention and one paragraph on rectification. He further suggested two changes to the paragraph on prevention: that the paragraph be restructured to focus on prevention of the act rather than prevention of the loss; and that the use of the lawyer's services not be a factor. The Commission agreed with the suggestion.
Paragraph (b)(3)
The Commission discussed whether or not the exceptions listed in paragraph (b)(3) are impliedly authorized and whether the suggested exceptions should be stated in the Rule or simply discussed in the Comment. Professor Pierce pointed out that a client would not be able to prevent a lawyer from revealing or using information in these circumstances if the proposed subsections are specifically included in Rule 1.6. One Commission member voiced concern that in each of the situations listed there are instances where a client should have to give consent. Another member suggested that in many instances a client should be given notice even if the client cannot veto the lawyer's action. An observed suggested that the exceptions should be in the Rule to provide guidance to lawyers and that the Comment should indicate that other exceptions will develop.
The Commission looked at each exception separately and decided that paragraph (b)(3)(i) is impliedly authorized and should not be listed as an exception. With respect to the other exceptions, the Commission discussed the difference between notice to the client and client consent. The Commission agreed that paragraph (b)(3)(iii) should be included as an exception without a requirement of notice to the client, and that paragraphs (b)(3)(ii), (iv), and (v) should be included as exceptions with a requirement of notice to the client.
Paragraph (b)(4)
Professor Pierce reviewed possible modifications of the Rule in light of state variations. The Commission determined that the changes do not significantly alter the Rule and that the current Model Rule has not had problems with interpretation.
Extract from Ethics 2000 Meeting Minutes, July 31 - August 1, 1998 at Toronto, Canada
Source: http://www.abanet.org/cpr/073198mtg.htmlII. Model Rule 1.6
A motion was made and seconded to re-insert the concept of "imminent" into paragraph b(1). In discussion, several members noted the political realities of attempting to remove the concept of "imminent" from the Rule. One observer pointed out that timing is taken into consideration because the lawyer may only disclose information that the lawyer reasonably believes is necessary to prevent death or substantial bodily harm. Another observer suggested that the comment explain that "imminent" means more than just an action about to occur. The Commission agreed that one sentence in the Comment should explain the concept of "imminent." The motion passed unanimously. [Emphasis here and below was added by the compiler of these extracts.]
A motion was made and seconded to approve the current draft language that does not limit paragraph b(1) to acts by the client. The motion passed with a vote of 7 to 3.
The Commission next looked at the proposed paragraphs b(2) and (3). A motion was made and seconded to link paragraph b(2) to the use of the lawyer's services. The Reporter noted that the primary effect of this paragraph would be on ongoing fraud. At the request of a member, the movant clarified that if the motion is passed, paragraph b(2) will include the concepts of prevention, knowledge, substantial loss to financial interests or property, and the use of the lawyer's services. There was some discussion regarding the reception the amended paragraph would receive in the House of Delegates. The Commission agreed to defer that issue to another time. A member pointed out that under paragraph b(2), the client has the option of avoiding the harm by stopping the conduct. A member questioned what degree of knowledge is required. Other members noted that disclosure is discretionary. An observer added that "may" does not necessarily give unfettered discretion. The motion passed with one dissent.
A motion was made to strike paragraph b(3). One observer argued that the public expects this type of disclosure. A member stated he thought the provision should be eliminated because lawyers owe their clients a duty of confidentiality. One member stated that implicit in the discussion is the concept that there are certain values served by the rule of confidentiality and that there are other values in society that are perhaps more important. Other members agreed that if the lawyer's services have been abused the client no longer deserves the protection of the Rule. A member stated his belief that if the lawyer's services are used, the lawyer may withdraw but may not disclose information to others. Another member indicated that he agreed only with respect to a criminal context. The member responded that what is criminal is not always clear. Several members noted that a lawyer may have civil liability for failure to notify in certain situations. The motion was defeated by a vote of 6 to 4.
A motion was made and seconded to delete paragraph b(5)(iii). The Commission discussed the extent to which paragraph b(5)(iii) is different in its operative effect from paragraph b(3). The Reporter noted that paragraph b(5)(iii) is a little broader because it allows a lawyer to disaffirm anything that the lawyer believes is misleading. A member added that paragraph b(5)(iii) does not have a crime/fraud limitation. A motion was made and seconded to amend the motion to delete paragraphs b(4) and (5). The movant argued that the substance of those paragraphs is covered in the concept of "impliedly authorized" and that the lawyer's obligations are contained in other Rules. The Reporter noted that disclosures or uses that are impliedly authorized can be trumped by client instructions to the contrary. The paragraphs were included to allow the lawyer to act regardless of client instructions. The motion to amend was defeated 6 to 4. The movant of the original motion suggested that the relationship between the two paragraphs needs to be carefully examined. A member suggested that the substance of the paragraph should be covered in Rule 4.1. The movant felt that Rule 1.6 should contain a cross-reference to Rule 4.1 but that the substance should not be moved. He accepted an amendment to his motion that the matter be sent back to the Reporter to examine the relationship between the two paragraphs and determine what, if anything, remains. The motion passed with a vote of 10 to 1. There was a general consensus that paragraph b(5)(iii) would probably be deleted after the review.
An observer suggested that the Rule should indicate that the lawyer may not disclose information without first giving the client an opportunity to rectify the situation. The Commission agreed that the Comment should include a statement to that effect.
A motion was made and seconded to strike paragraph b(5)(ii). The Commission discussed the need to limit the rule to narrow exceptions where important competing values are at stake. The motion passed by a vote of 10 to 1.
The Commission then discussed paragraph b(4). One member felt that the words "or other law" in the paragraph are not clear. Other members argued that the paragraph was not necessary because disclosure under this paragraph would be impliedly authorized. A member argued that this would be viewed as a lawyer-protection rule. A motion was made and seconded to cover the substance of the Rule in a Comment discussing implied authorization. The motion was defeated by a vote of 7 to 3. The Commission agreed that the words "enable the lawyer to" and "or other law" should be deleted from paragraph b(4). One member pointed out that lawyer hotlines would not be covered under this paragraph. Some members argued that the paragraph was unnecessary, but the Commission decided to include it in part for its educational value.
A member reported that she had received a letter from a member of the Advisory Council suggesting that the Commission review the definition of "information relating to representation of the client." The author of the letter felt that the definition was too broad and should be restricted by incorporating the concept of information "generally known" and the Code terms "confidences and secrets." Another member felt that the definition in Comment [5] was fine. The Commission agreed that the issue had been previously discussed and that the definition should not be restricted.
A member suggested that sub-paragraphs a(1) and (2) be separated into two paragraphs. Another member questioned why use and disclosure should be treated differently. An observer pointed out that the two paragraphs were previously in different rules [paragraph a(2) was previously Rule 1.8(b)] because "use"in Rule 1.8 was more of a conflict of interest rule prohibiting an agent from profiting from information learned in the course of representation. He noted that the Model Rules introduced the concept that there are some things a lawyer can use even if the use profits the lawyer. He added that the paragraph is hard to draft in part because of the broad definition of "information relating to representation of the client."
The Commission discussed whether moving Rule 1.8(b) to Rule 1.6(a) had created confusion rather than clarity. A member suggested that paragraph (a) be changed to read: "A lawyer shall not use or disclose information related to the representation to the disadvantage of the client." This construction would eliminate the term "impliedly authorized." The Commission asked the Reporter to try this approach in the next draft. A motion was made to approve paragraph (c) as drafted. The motion passed by consensus.
A suggestion was made to consider replacing the term "imminent" with a better formulation such as "reasonably certain," or "substantial likelihood." The Commission requested that the Reporter put these terms in brackets for the next draft.
Extract from Ethics 2000 Meeting Minutes, September 27-28, 1998 at Chicago, Illinois
Source: http://www.abanet.org/cpr/e2k/092798mtg.htmlIII. Model Rule 1.6
The Commission reviewed Comment [3] explaining "information relating to representation of a client," which was drafted in response to a letter from a former member of the Ethics Committee who felt that the phrase was unclear and too broad. This led to discussion of the Commission’s decision to move Rule 1.8(b) regarding use of client information to Rule 1.6(a). While both Rules deal with loyalty and confidential information, Rule 1.8(b) is a conflicts rule. Several members felt that moving "use" to 1.6(a) confused the Rule with respect to disclosure of information. An observer remarked that if the Commission moves 1.8(b) to 1.6, there will be an implication that some substantive change was intended. The Commission agreed that it should avoid confusion. A motion was made, seconded and unanimously approved to move "use" back to Rule 1.8 and to change Comments [3] and [5] regarding "information relating to representation of a client."
The Commission moved to a discussion of Rule 1.6(b)(1). Several options were considered:
1. include no modifier because the body of subparagraph (b) already states that a lawyer may reveal information only "to the extent necessary;"
2. use the term "imminent;"
3. use the term "reasonably certain;"
4. use both "imminent" and "reasonably certain;" or
5. use the term "probable."
The Commission agreed that "probable" was not strong enough and that having no modifier may imply a substantive change that is not intended. Several members felt that "imminent" was not inclusive enough but that the concept should be discussed in the Comment. Others felt that lawyers understand "imminent" and the term should not be removed. A member expressed concern that broadening the freedom of the lawyer to speak might subject lawyers to increased civil liability. Others felt that the concern was unfounded. [Emphasis here and bolow was added by the compiler of these extracts.]
A motion was made and seconded to amend Rule 1.6(b)(1) to state: "to prevent ‘imminent’ or ‘reasonably certain’ death or substantial bodily injury." The motion passed with a vote of 6 to 5. A second motion was made and seconded to amend Rule 1.6(b)(1) to state: "to prevent ‘reasonably certain’ death or substantial bodily injury." The motion passed with a vote of 8 to 4. The Commission agreed that the Comment should explain that "reasonably certain" includes "imminent."
A motion was made and seconded to delete paragraph (b)(3). The motion was defeated with a vote of 4 to 7.
A motion was made and seconded to delete paragraph (b)(4). The proponent argued that the substance of the Rule is covered by implied authorization and that the Rule is a lawyer protection measure. Other members disagreed and felt the Rule was necessary. The motion was defeated with a vote of 1 to 12.
A suggestion was made to combine paragraphs (b)(2) and (b)(3). The Commission asked the Reporters to consider the suggestion.
A motion was made and seconded to approve the proposed draft of the Rule 1.6 (Black Letter only) consistent with the decisions made at this meeting. The motion passed with a vote of 11 to 2.
Chief Justice Veasey asked the Commission members to provide their comments on the proposed Comments to Carl Pierce as soon as possible.
Extract from Ethics 2000 Meeting Minutes, December 11-12, 1998 at Philadelphia, Pennsylvania
Source: http://www.abanet.org/cpr/e2k/121198mtg.htmlIII. Rule 1.6
Professor Pierce noted that reference to using information to the disadvantage of a client was moved back to Rule 1.8 in accordance with the decision made at the last meeting. Another change from the prior draft is the addition of a specific reference to former clients in the rule. The Reporters felt that this would improve the organization of the rules and clarify some different treatment in Rule 1.9(c). As part of this change, Rule 1.9(c)(2) would be deleted so that confidentiality obligations to former clients would be covered in Rule 1.6. This would be consistent with the treatment of this subject in the Model Rules prior to the amendment of Rule 1.9 in 1989. A comment in Rule 1.6 prior to the 1989 amendment stated that confidentiality obligations continue after the representation terminates. Rule 1.9 would still cover conflict of interest and former clients. The Commission approved the reference to former clients in Rule 1.6.
The Commission discussed proposed Rules 1.6(b)(2) and (3) and reviewed a suggestion from the Reporters to combine the two into one provision. The Commission focused on the common understanding of the words "prevention," "mitigation" and "rectification," noting the time dimension or spectrum encompassed by the words. There was some difference of opinion whether ongoing crimes were covered by subparagraph (2) or subparagraph (3). Several members saw a significant difference between preventing future harm and taking action with respect to past harm, and felt that some states may be willing to accept prevention but not the other. The Commission approved proposed Rules 1.6(b)(2) and (3) as drafted.
An observer suggested that paragraph (b) be amended to replace the words "to the extent the lawyer reasonably believes necessary" with the words "to the limited extent necessary." Professor Pierce pointed out that the term "reasonably believes" is used in the rules to provide an objective standard. Other members felt that the adding the word "limited" was redundant and, therefore, confusing. A motion to add the word "limited" to Rule 1.6(b) was defeated 8 to 2.
Comments
A member suggested that Comments [20] and [21] be moved to Rule 5.1. The Commission decided to leave the comments in Rule 1.6 but to also address the issue of supervisory lawyers in the comments to Rule 5.1.
The Commission suggested that the Reporter cross-reference Rule 1.2 in Comment [11] or [12]. The Commission also requested that the Reporter soften the language in Comments [11] and [12] by deleting the references to "victims."
A member raised a question about the term "final order" in Comment [19]. As written, the comment implies that the burden would be on the lawyer to pursue something all the way to a "final order" even if the client is not willing to be responsible for the costs involved. The Commission agreed that the comment should convey the idea that if an order will not be appealed, then the lawyer has to comply, and suggested that the Reporters provide a cross-reference to Rule 1.4.
A member suggested deleting the example in Comment [10]. Several members agreed that the example was too extreme. Professor Moore indicated her preference to include the example because it demonstrates a radical change in the proposed rule. The Commission left the decision to the discretion of the Reporters.
Extract from Ethics 2000 Meeting Minutes, February 5-6, 1999 at Los Angeles, California
Source: http://www.abanet.org/cpr/020599mtg.htmlIII. Rule 1.6
1.6(b)(2) & (3)
An observer suggested that the Commission clarify what a lawyer is permitted to do under subparagraphs (b)(2) and (b)(3). There was some concern that the lawyer was encouraged to do more than simply notify the victims of the client's fraud. The Reporter pointed out that the rule only permits a lawyer to take action to the extent necessary to accomplish the purpose indicated. A member argued in favor of deleting the words "prevent," "mitigate," and "rectify." The Commission was not in favor of that change. The Commission agreed to clarify in the comment that the lawyer should remonstrate with the client, when feasible, prior to making any permitted disclosures.
1.6(c)
The Commission agreed that references to specific rules should be deleted and the paragraph should be revised to read, "law, court order, or these Rules."
Comments
In response to a question, the Reporter advised that the comment on corporate structure was moved to Rule 1.13.
The Commission reviewed several editorial suggestions from members and agreed to make the following changes to the comments:
[2] delete the comment.
[3] replace the word "maze" with the word "complex" and move the word "is" next to "deemed."
[6] delete the comment.
[8] move the "except" clause to the beginning of the comment and add the word "sometimes" in the examples.
[9] combine [8] and [9].
[10] add a new sentence on remonstrating with the client; retain the reference to sexual abuse in the comment; use the term "harm" instead of "injuries" after the second sentence.
[11] fix the syntax in the fourth sentence.
[12] change the last sentence to read, "necessary to enable the affected persons to attempt to recoup their losses."
[14] The members were unsure how this comment affected hotlines, in which no attorney-client relationship is formed but some disclosure of confidential information might occur. Several members felt that the comment applied only to situations where a lawyer is consulting another lawyer about the lawyer's own behavior. The Commission asked the Reporters to delete the last sentence and insert the word "confidential" prior to the word "legal" in the first sentence.
[17] substitute the words "disclose as" for "take preventive action" in the last sentence.
The Commission agreed that Rule 1.6 was ready to be disseminated for public comment with the changes discussed above.
Extract from Ethics 2000 Meeting Minutes, February 11-13, 2000 at Dallas, Texas
Source: http://www.abanet.org/cpr/021100mtg.htmlThe Commission looked first at the suggestions that have been made to the current Model Rule formulation of “information relating to the representation” to something less broad, such as “confidences and secrets.” Several commentators urged the Commission to follow the Restatement by excluding from “confidential client information,” information that is generally known. A member stated that the current formulation has not been a problem and has not been improperly applied by disciplinary agencies. There was no motion to amend the Commission's current draft.
The Commission then discussed a proposal to substitute “reasonably certain” for “likely” in paragraph (b)(2) to make it parallel to paragraph (b)(1). Several members thought that “reasonably certain” was too high a standard and that lawyers should have more discretion to extricate themselves when the client has used the lawyer’s services. Others felt that since confidentiality is so basic to the lawyer-client relationship, any encroachment should be as narrow as possible. Those who favored the change also argued that the purpose of this rule is to prevent harm, not to protect a lawyer’s liability. A member pointed out that Rule 4.1 compels disclosure in certain circumstances unless disclosure is prohibited by Rule 1.6. He felt that if disclosure might be compelled, the standard should be very high. A motion was made and seconded to change “likely” to “reasonably certain” in paragraph (b)(2). The motion passed 5 to 4. [Emphasis added by the compiler of these extracts.]
A motion was made and seconded to add “prevent” to paragraph (b)(3). A member felt that “prevent” was included in “mitigate.” Another member responded that “prevent” has a peremptory implication not included in mitigate. He felt that if the Commission intended to include “prevent” within “mitigate,” then “prevent” should be added. The motion passed 6 to 3.
A motion to change “shall” to “may” in paragraph (c) passed unanimously. This change was suggested by a number of commentators who felt that, given the large number of rules and regulations governing disclosure to a wide variety of governmental bodies, paragraph (c) could lead to a wholesale erosion of confidentiality. The Reporter pointed out that “shall” should be retained to the extent that a lawyer must reveal information relating to the representation “when necessary to comply with these Rules.” The Commission agreed and asked the Reporter to add a new paragraph (b)(6) that states: “to the extent required by law or court order.” Some commentators had also suggested amending Comment [15] to refer to a “final” order of a court or tribunal. The Commission felt that the concerns of the commentators would be taken care of with the change to paragraph (c).
An observer suggested that a sentence be added to the end of Comment [5] to state that disclosures should only be made for a “proper professional purpose.” The Commission felt that the change was not necessary.
The Commission agreed unanimously to delete the third sentence of Comment [6].
Extract from Ethics 2000 Meeting Minutes, March 24-25, 2000 at Chicago, Illinois
Source: http://www.abanet.org/cpr/032400mtg.htmlXII. Rule 1.6
The Commission discussed whether to combine paragraphs (b)(2) and (b)(3). Several members felt that by compressing the paragraphs it was not clear that a lawyer can act before the crime or fraud occurs. The Commission voted to separate the two paragraphs and return them to the wording in the public discussion draft. The Comment should refer to the definition of fraud in Rule 1.0.
The Commission reviewed the changes in paragraphs (b)(6) and (c). A member felt that the change seemed to abandon any requirement that the lawyer resist disclosure. The Reporter observed that the Comment does discuss resisting in terms of when it is “reasonable necessary” to comply. Another member pointed out that the Kutak proposal was “where disclosure by the lawyer is required by law.” The Commission voted unanimously to adopt the Kutak proposal.
A member suggested that the second sentence of Comment [12] be revised by deleting the words “but a presumption should exist against such a supersession.”
The Commission then discussed whether the provision regarding compliance with court orders should remain in proposed paragraph (b)(6). The Commission agreed that paragraph (b)(6) should be deleted and that paragraph (c) should be revised to read “. . . where disclosure by the lawyer is required by law or court order.” The Comment should explain when it is necessary for the lawyer to comply (e.g., discretion ends at the point where the law has finally spoken). The Commission agreed that references to specific rules should not be included in the black letter text. The Comment should explain which rules are applicable.
One member felt that by making this change the notion has been lost that the lawyer is protected when the lawyer reasonably believes disclosure is required but is wrong. The Commission felt that this issue should be addressed with other issues related to scienter.
The Commission felt that it was not necessary to include any reference to “tribunal” in the black letter text. The Commission will review all rules relating to tribunals at another meeting.
In response to a question, the Reporter noted that it is not necessary to refer to Rule 1.14 because that rule merely refers to the implied authority in Rule 1.6 and does not create a new disclosure obligation.
Extract from Ethics 2000 Meeting Minutes, May 5-7, 2000 at Memphis, Tennessee
Source: http://www.abanet.org/cpr/050500mtg.htmlXXVI. Rule 1.6
The Commission agreed unanimously to change “shall” to “may” in paragraph 1.6(c). Several members pointed out that if the lawyer does not disclose (to comply with these Rules or with other law or a court order) the lawyer won't be disciplined under 1.6 but may still be required to disclose by other law.
The Reporter indicated that he will change the reference in Comment [14] to Rules 3.3 and 4.1 after the Commission finalizes its discussion on those rules.
A member suggested deletion of “clearly” in the last sentence of Comment [15]. Another suggested deletion of the sentence. The Reporter will reexamine the sentence. A member suggested changing “provide” to “require” in the first line of the Comment.
A member noted that the last line of Comment [16] should say “Unless review is sought,” rather than “Unless appeal is taken,” because review is sometimes available through means other than appeal. The Commission did not agree with the suggestion of another member to delete the sentence since many lawyers feel they have to seek review no matter how hopeless the case.
Extract from Ethics 2000 Meeting Minutes, July 7-8, 2000 at New York City, New York
Source: http://www.abanet.org/cpr/070700mtg.htmlV. Rule 4.1 and related changes to Rules 1.2 and 1.6
The Reporter explained that the suggested changes to Rule 4.1 are designed to clarify the relationship between Rules 1.2(d), 1.6 and 4.1. The Reporters had been asked to consider deleting Rule 4.1(b) as possibly duplicative of Rule 1.2(d). Some members and observers had objected to the deletion since Rule 1.2(d) did not contain a specific disclosure obligation. The Reporters’ proposal after considering the problem has three parts: first, to amend Rule 1.2(d) to include a disclosure obligation; second, to retain Rule 4.1(b) even though it may be redundant with the change to Rule 1.2(d), because the obligation to disclose will most often arise in the context covered by Rule 4.1(b); and third, to amend Rule 1.6 by deleting the reference to “these Rules” in proposed Rule 1.6(b)(6). With respect to the latter, the previous proposal to state in Rule 1.6(b)(6) that a lawyer may reveal information to comply with “these Rules” or with other law or court order had created a circularity problem. Deletion of the phrase solves the problem without making a substantive change in Rule 1.6.
The Commission approved the changes to Rules 1.2(d) and 1.6(b)(6) and the proposal to leave Rule 4.1 unchanged with one dissenting vote.
A member suggested that the phrase “unless disclosure is prohibited by Rule 1.6,” be deleted from Rule 4.1(b). Other members felt that since the proposed exceptions in Rule 1.6 are already controversial it would be better to leave the Rule as is.
An observer asked why the word “prevent” had been deleted in Rule 1.6(b)(3). The Commission clarified that it had not intended to delete “prevent” at the last meeting when it suggested that paragraph (b)(3) be restored to the public comment draft. This was not clear in the previous minutes. The Commission reaffirmed that (b)(3) should include the term “prevent” and use the phrase “that is reasonably certain to result or has resulted from” in the text.
Extract from Ethics 2000 Meeting Minutes, September 15-17, 2000 at Philadelphia, Pennsylvania
Source: http://www.abanet.org/cpr/e2k-09-15mtg.htmlXXIII. Rule 1.6
A member requested that the concept in the last sentence of Comment [8] be stated in paragraph (b)(2). The Reporter responded that paragraphs (b)(2) and (3) are different in terms of the type of disclosure necessary.
A member suggested changing Comment [7] to avoid the implication that the lawyer must take steps (other than disclosure) to prevent the client’s action. A motion was made and seconded to so change Comment. The motion passed 6 to 2.
The Commission agreed with a suggestion to change “enables” to “permits” in the Comment.
The Commission did not agree with a suggestion to delete paragraph (b)(6).
The Commission did not agree with a suggestion to change the words “legal and correct” in Comment [2].
The Commission agreed with a suggestion to add Ato the extent required by Rule 1.4" in Comment [12] following “the lawyer should.”
A member suggested that Comment [12] should parallel Comment [13] in stating that a lawyer should assert all nonfrivolous claims. The Reporter stated the Comment [13] applies to the finite universe of court while Comment [12] is a huge field. He suggested that Comment [12] could alert lawyers to the possibility of contesting. The members agreed to help draft language.
Extract from Ethics 2000 Meeting Minutes, August 4, 2001 at Chicago, Illinois
Source: http://www.abanet.org/cpr/e2k-08-04mtg.htmlIII. Rule 1.6 Comment [13]
The Commission approved the proposed change in response to comments from the American College of Trial Lawyers. It modifies the Comments to explicitly address the lawyer's responsibility when faced with a subpoena or order from a governmental entity other than a court, such as legislative or regulatory body.
[Compiled by Doug Schafer on March 15, 2003]