[Return to EvergreenEthics.com]The "Rectify Fraud" States, their RPC 1.6 or equivalent.
(Extracts of the public-interest exceptions to the lawyers' duty of confidentiality in the
Rules of Professional Conduct or the Code of Professional Responsibility of those 32 states.)
(The states with pending proposals to adopt such rules are listed below at the end.)Arizona http://www.supreme.state.az.us/media/pdf/test%20ule%2042%20%2043.pdf
Supreme Court Rule 42, ER 1.6, effective December 1, 2003.
(d) A lawyer may reveal such information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) 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 and in furtherance of which the client has used or is using the lawyer’s services;
(2) to 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;
[clauses 3 and 4 omitted here]
(5) to comply with other law or a final order of a court or tribunal of competent jurisdiction directing the lawyer to disclose such information.
Arkansas http://courts.state.ar.us/opinions/2005a/20050303/arpc2005.html
Supreme Court on March 3, 2005, adopted new RPCs, effective May 1, 2005, including new RPC 1.6:
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent the commission of a criminal act;
(2) to prevent the client from committing a fraud that is reasonably certain to result in injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify injury to the financial interest 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;
[clauses 4 and 5 omitted here]
(6) to comply with other law or a court order.
Colorado http://www.courts.state.co.us/supct/rules/2007/07_07.pdf
http://www.cobar.org/group/index.cfm?category=3156&EntityID=CETH
Rule 1.6 (adopted Apr. 12, 2007,effective Jan. 1, 2008)
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably
believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to reveal the client’s intention to commit a crime and the information necessary to prevent the crime;
(3) to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(4) 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;
[clauses 5 and 6 omitted here]
(7) to comply with other law or a court order.
Connecticut http://www.jud.ct.gov/Publications/PracticeBook/PB1.pdf
Rule 1.6
(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.
(c) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to:
(1) Prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interest or property of another;
(2) Rectify the consequence of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.
Delaware http://courts.state.de.us/Rules/?FinalDLRPCclean.pdf
Rule 1.6 (effective July 1, 2003)
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) 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 and in furtherance of which the client has used or is using the lawyer’s services;
(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;
[clauses 4 and 5 omitted here]
(6) to comply with other law or a court order.
District of Columbia http://www.dcbar.org/new_rules/rules.cfm [Effective Feb. 1, 2007.]
Rule 1.6
(c) A lawyer may reveal client confidences and secrets, to the extent reasonably necessary:
(1) to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm absent disclosure of the client’s secrets or confidences by the lawyer; or
(2) to prevent the bribery or intimidation of witnesses, jurors, court officials, or other persons who are involved in proceedings before a tribunal if the lawyer reasonably believes that such acts are likely to result absent disclosure of the client’s confidences or secrets by the lawyer.
(d) When a client has used or is using a lawyer’s services to further a crime or fraud, the lawyer may reveal client confidences and secrets, to the extent reasonably necessary:
(1) to prevent the client from committing the crime or fraud if it is reasonably certain to result in substantial injury to the financial interests or property of another; or
(2) 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 the crime or fraud.
Hawaii http://www.state.hi.us/jud/ctrules/hrpcond.htm#Rule%201.6 [With a corrupt government exception -- see (c)(4).]
Rule 1.6
(b) A lawyer shall reveal information which clearly establishes a criminal or fraudulent act of the client in the furtherance of which the lawyer's services had been used, to the extent reasonably necessary to rectify the consequences of such act, where the act has resulted in substantial injury to the financial interests or property of another.
(c) A lawyer may reveal information relating to representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another;
(2) to rectify the consequences of a client's act which the lawyer reasonably believes to have been criminal or fraudulent and in the furtherance of which the lawyer's services had been used;
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(4) to prevent a public official or public agency from committing a criminal or illegal act that a government lawyer reasonably believes is likely to result in harm to the public good;
(5) to rectify the consequences of a public official's or a public agency's act which the government lawyer reasonably believes to have been criminal or illegal and harmful to the public good; or
(6) to comply with other law or court order.
Idaho http://www2.state.id.us/isb/rules/irpc.htm (effective 7/1/2004)
Rule 1.6
(b) A lawyer may reveal information relating to representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a crime, including disclosure of the intention to commit a crime;
(2) to prevent reasonably certain death or substantial bodily harm;
(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 in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of a client; or
(6) to comply with other law or a court order.
Indiana http://www.in.gov/judiciary/orders/rule-amendments/2004/0904-prof-conduct.pdf (effective 1/1/2005)
Rule 1.6
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or from committing fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(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.
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(6) to comply with other law or a court order.
Iowa http://www.judicial.state.ia.us/Professional_Regulation/Rules_of_Professional_Conduct/ (effective 7/1/2005)
Rule 32:1.6
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) 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 and in furtherance of which the client has used or is using the lawyer’s services;
(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.
(4) to secure legal advice about the lawyer’s compliance with these rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(6) to comply with other law or a court order.
(c) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent imminent death or substantial bodily harm.
Louisiana http://www.lsba.org/Rpc2004.pdf (effective 3/1/2004)
Rule 1.6
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) 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 and in furtherance of which the client has used or is using the lawyer’s services;
(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.
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(6) to comply with other law or a court order.
Maryland http://michie.lexisnexis.com/maryland/lpext.dll/mdrules/8/1181?fn=document-frame.htm&f=templates&2.0# (Effective 7/1/05)
Rule 1.6
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) 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 and in furtherance of which the client has used or is using the lawyer’s services;
(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;
(4) to secure legal advice about the lawyer’s compliance with these Rules, a court order or other law;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) to comply with these Rules, a court order or other law.
Massachusetts http://www.state.ma.us/obcbbo/rpc1.htm#Rule 1.6
Rule 1.6
(b) A lawyer may reveal, and to the extent required by Rule 3.3, Rule 4.1(b), or Rule 8.3 must reveal, such information:
(1) to prevent the commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another, or to prevent the wrongful execution or incarceration of another;
(2) to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
(3) to the extent the lawyer reasonably believes necessary to rectify client fraud in which the lawyer's services have been used, subject to Rule 3.3 (e);
(4) when permitted under these rules or required by law or court order.
Michigan http://courtofappeals.mijud.net/rules/public/default.asp (Proposed changes that do significantly alter Rule 1.6 are at http://courts.michigan.gov/supremecourt/Resources/Administrative/index.htm#Other2 The comment period ended 6/1/2005.)
Minnesota http://www.courts.state.mn.us/rules/professionalConduct/MRPC.pdf (effective October 1, 2005)
Rule 1.6
(c) A lawyer may reveal:
(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;
(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;
(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and
(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct.
Rule 1.6
(b) A lawyer may reveal information relating to the representation of a client if:
(1) the client gives informed consent;
(2) the information is not protected by the attorney-client privilege under applicable law, the client has not requested that the information be held inviolate, and the lawyer reasonably believes the disclosure would not be embarrassing or likely detrimental to the client;
(3) the lawyer reasonably believes the disclosure is impliedly authorized in order to carry out the representation;
(4) the lawyer reasonably believes the disclosure is necessary to prevent the commission of a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services, or to prevent the commission of a crime;
(5) the lawyer reasonably believes the disclosure is necessary to rectify the consequences of a client’s criminal or fraudulent act in the furtherance of which the lawyer’s services were used;
(6) the lawyer reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial bodily harm;
(7) the lawyer reasonably believes the disclosure is necessary to secure legal advice about the lawyer’s compliance with these rules;
(8) the lawyer reasonably believes the disclosure is necessary to establish a claim or defense on behalf of the lawyer in an actual or potential controversy between the lawyer and the client, to establish a defense in a civil, criminal, or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond in any proceeding to allegations by the client concerning the lawyer’s representation of the client;
(9) the lawyer reasonably believes the disclosure is necessary to comply with other law or a court order; or
(10) the lawyer reasonably believes the disclosure is necessary to inform the Office of Lawyers Professional Responsibility of knowledge of another lawyer’s violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. See Rule 8.3.
Mississippi http://www.mssc.state.ms.us/news/sn127394.pdf (adopted ABA Model Rule on 11/3/05, effective immediately)
Rule 1.6
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) 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 and in furtherance of which the client has used or is using the lawyer’s services;
(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;
(4) to secure legal advice about the lawyer’s compliance with these rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) to comply with other law or a court order.
Nevada New RPC 1.6 [effective 5/1/2006] http://www.leg.state.nv.us/CourtRules/RPC.html
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) To prevent reasonably certain death or substantial bodily harm;
(2) To prevent the client from committing a criminal or fraudulent act in furtherance of which the client has used or is using the lawyer's services, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take suitable action;
(3) To prevent, mitigate, or rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services have been or are being used, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take corrective action;
(4) To secure legal advice about the lawyer's compliance with these Rules;
(5) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) To comply with other law or a court order.
(c) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent a criminal act that the lawyer believes is likely to result in reasonably certain death or substantial bodily harm.
New Jersey http://njlawnet.com/nj-rpc/rpc1-6.html
Rule 1.6
(b) A lawyer shall reveal such information to the proper authorities, as soon as, and to the extent the lawyer reasonably believes necessary, to prevent the client:
(1) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another;
(2) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal.
(c) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to rectify the consequences of a client's criminal, illegal or fraudulent act in the furtherance of which the lawyer's services had been used;
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or to establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer based upon the conduct in which the client was involved; or
(3) to comply with other law.
New York http://www.nysba.org/Content/NavigationMenu/Attorney_Resources/Lawyers_Code_of_Professional_Responsibility/LawyersCodeOfProfessionalResponsibility.pdf
[The last clause (the "except clause") was nullified by People v. DePallo, 96 N.Y.2d 437, 729 N.Y.S.2d 649, 754 N.E. 2d 751 (2001) (The Court there said, "The intent to commit a crime is not a protected confidence or secret.") "These statements have led Professor Roy Simon to conclude that DePallo changed New York law. Before DePallo, the lawyer's only choices after the fraud had already occurred "[were] to remain silent and carry on the representation with full zeal or to attempt to withdraw ...," but DePallo indicates that after-the-fact disclosure is permitted despite DR 7-102(B)(1). [Simon's New York Code of Professional Responsibility Annotated 772 (2003).]" The passage just quoted is from the Reporter's Note (at page 275) to Proposed Rule 3.3 of the New York State Bar Association's Committee on Standards of Attorney Conduct Proposed New York Rules of Professional Conduct (September 2005), available http://www.nysba.org/Content/ContentGroups/COSAC_Report/COSAC_Proposed_Rules_of_Professional_Conduct.htm]
Disciplinary Rule 4-101
C. A lawyer may reveal:
3. The intention of a client to commit a crime and the information necessary to prevent the crime.
Disciplinary Rule 7-102
B. A lawyer who receives information clearly establishing that:
1. The client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a confidence or secret.
In late 2007, the NY Bar Association recommended to its state high court the adoption of new ethics rules that somewhat follow the ABA Model Rules, but vary in may respects. The NY Bar recommends not adopting the Model Rule 1.6 provisions that permit lawyer to reveal confidences of clients who have used them to further crime and fraud. The NY Bar's recommendations are posted at http://www.nysba.org/AM/Template.cfm?Section=Committee_on_Standards_of_Attorney_Conduct_Home&Template=/CM/ContentDisplay.cfm&ContentID=4786
A news article on the proposal is posted at http://www.law.com/jsp/article.jsp?id=1194343448699
North Carolina http://www.ncbar.com/rules/rpcsearch.asp (effective March 1, 2003)
Rule 1.6
(b) A lawyer may reveal information protected from disclosure by paragraph (a) to the extent the lawyer reasonably believes necessary:
(1) to comply with the Rules of Professional Conduct, the law or court order;
(2) to prevent the commission of a crime by the client
(3) to prevent reasonably certain death or bodily harm;
(4) to prevent, mitigate, or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services were used;
North Dakota Amended rule effective August 1, 2006. http://www.ndcourts.com/court/notices/20050353/adopted/contents.htm
Rule 1.6 (b) A lawyer is required to reveal information relating to the representation of a client to the extent the lawyer believes reasonably necessary to prevent reasonably certain death or substantial bodily harm.
(c) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) 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 and in furtherance of which the client has used or is using the lawyer's services;
(2) 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 crime or fraud in the furtherance of which the client has used the lawyer's services;
(3) to secure legal advice about the lawyer's compliance with these Rules;
(4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(5) to comply with other law or a court order.
Ohio http://www.sconet.state.oh.us/Atty-Svcs/ProfConduct/rules/default.asp [Effective Feb. 1, 2007]
Rule 1.6
(b) A lawyer may reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law, to the extent the lawyer reasonably believes necessary for any of the following purposes:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the commission of a crime by the client or other person;
(3) to mitigate substantial injury to the financial interests or property of another that has resulted from the client's commission of an illegal or fraudulent act, in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding, including any disciplinary matter, concerning the lawyer's representation of the client;
(6) to comply with other law or a court order.
(c) A lawyer shall reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law, to the extent the lawyer reasonably believes necessary to comply with Rule 3.3 or 4.1.
Pennsylvania http://www.courts.state.pa.us/OpPosting/Supreme/out/30drd.1attach.pdf (effective 1/1/2005, minor changes to Rule 1.6) http://www.courts.state.pa.us/Index/aopc/pressreleases/prrel04823.asp (press release of Aug. 23, 2004)
Oklahoma http://www.okbar.org/ethics/ORPC.htm [adopted April 9, 2007, effective Jan. 1, 2008]
Rule 1.6
(b) A lawyer may reveal information relating to representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing:
(i) a crime; or
(ii) a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(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, provided that the lawyer has first made reasonable efforts to contact the client so that the client can rectify such criminal or fraudulent act, but the lawyer has been unable to do so, or the lawyer has contacted the client and called upon the client to rectify such criminal or fraudulent act and the client has refused or has been unable to do so;
(4) to secure legal advice about the lawyer’s compliance with theses Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) as permitted or required to comply with these Rules, other law or a court order.
Rule 1.6
(c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interests or property of another;
(3) to prevent, mitigate or rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services are being or had been used;
South Carolina http://www.judicial.state.sc.us/courtReg/newrules/RULE407RULE1.6.htm (Effective October 1, 2005)
Rule 1.6
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal act;
(2) to prevent reasonably certain death or substantial bodily harm;
(3) 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 and in furtherance of which the client has used or is using the lawyer’s services;
(4) 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;
(5) to secure legal advice about the lawyer's compliance with these Rules;
(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(7) to comply with other law or a court order.
South Dakota http://www.sdbar.org/Rules/rules.shtm
Rule 1.6 (Effective January 1, 2004)
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm;
(4) to the extent that revelation appears to be necessary to rectify the consequences of a client's criminal or fraudulent act in which the lawyer's services had been used; or
(5) to comply with other law or a court order.
Texas http://www.txethics.org/reference_rules.asp?view=conduct&num=1.05
Tennessee http://www.tba.org/ethics/index.html
Rule 1.6 (Adopted Aug. 27, 2002)
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes disclosure is necessary:
(1) to prevent the client or another person from committing a crime, including a crime that is reasonably certain to result in substantial injury to the financial interest or property of another, unless disclosure is prohibited or restricted by Rule 3.3;
(c) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes disclosure is necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to comply with an order of a tribunal requiring disclosure, but only if ordered to do so by the tribunal after the lawyer has asserted on behalf of the client all non-frivolous claims that the information sought by the tribunal is protected against disclosure by the attorney-client privilege or other applicable law; or
(3) to comply with Rules 3.3, 4.1, or other law.
Rule 4.1 [webnote: making a noisy withdrawal to mitigate or rectify client's criminal or fraudulent conduct]
(c) If a lawyer who is representing or has represented a client in a non-adjudicative matter comes to know, prior to the conclusion of the matter, that the client has, during the course of the lawyer’s representation of the client, perpetrated a crime or fraud, the lawyer shall promptly advise the client to rectify the crime or fraud and consult with the client about the consequences of the client’s failure to do so. If the client refuses or is unable to rectify the crime or fraud, the lawyer shall:
(1) if currently representing the client in the matter, withdraw from the representation and give notice of the withdrawal to any person whom the lawyer knows is aware of the lawyer’s representation of the client in the matter and whose financial or property interests are likely to be injured by the client’s criminal or fraudulent conduct; and
(2) give notice to any such person of the lawyer’s disaffirmance of any written statements, opinions, or other material prepared by the lawyer on behalf of the client and that the lawyer reasonably believes may be used by the client in furtherance of the crime or fraud.
Rule 1.5
(c) A lawyer may reveal confidential information:
(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.
(8) To the extent revelation reasonably appears necessary to rectify the consequences of a clients criminal or fraudulent act in the commission of which the lawyers services had been used.
. . . .
(e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act.
Utah http://www.utcourts.gov/resources/rules/approved/20051101/ (effective Nov. 1, 2005; ABA Model language)
Rule 1.6
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used the lawyer’s services;
(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 and in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(6) to comply with other law or a court order.
Virginia http://www.vsb.org/site/regulation/guidelines/ (Effective January 1, 2004)
Rule 1.6
(b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal:
(1) such information to comply with law or a court order;
(3) such information which clearly establishes that the client has, in the course of the representation, perpetrated upon a third party a fraud related to the subject matter of the representation;
(c) A lawyer shall promptly reveal:
(1) the intention of a client, as stated by the client, to commit a crime and the information necessary to prevent the crime, but before revealing such information, the attorney shall, where feasible, advise the client of the possible legal consequences of the action, urge the client not to commit the crime, and advise the client that the attorney must reveal the client's criminal intention unless thereupon abandoned, and, if the crime involves perjury by the client, that the attorney shall seek to withdraw as counsel;
(2) information which clearly establishes that the client has, in the course of the representation, perpetrated a fraud related to the subject matter of the representation upon a tribunal. Before revealing such information, however, the lawyer shall request that the client advise the tribunal of the fraud. For the purposes of this paragraph and paragraph (b)(3), information is clearly established when the client acknowledges to the attorney that the client has perpetrated a fraud;
Washington http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=RPC (Effective September 1, 2006)
Rule 1.6
(b) A lawyer to the extent the lawyer reasonably believes necessary:
(1) shall reveal information relating to the representation of a client to prevent reasonably certain death or substantial bodily harm;
(2) may reveal information relating to the representation of a client to prevent the client from committing a crime;
(3) may reveal information relating to the representation of a client 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;
(4) may reveal information relating to the representation of a client to secure legal advice about the lawyer’s compliance with these Rules;
(5) may reveal information relating to the representation of a client to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(6) may reveal information relating to the representation of a client to comply with a court order; or
(7) may reveal information relating to the representation of a client to inform a tribunal about any client’s breach of fiduciary responsibility when the client is serving as a court-appointed fiduciary such as a guardian, personal representative, or receiver.
Wisconsin http://www.wisbar.org/AM/Template.cfm?Section=Lawyer_Regulation_and_Discipline&template=/CM/ContentDisplay.cfm&contentid=62724 SCR 20:1.6 (Effective July 1, 2007)
(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interest or property of another.
(c) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably likely death or substantial bodily harm;
(2) 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;
States Where Committees Are Recommending the Rectify Fraud Exception
(generally by adoption of the ABA Model Rules 2003 version of Rule 1.6.)
Alaska [excerpt from bar committee's report obtained from Alaska Bar counsel] [Complete text of Bar proposal.]Committee report of August 2005 recommends adoption of ABA Model Rules version Rule 1.6 with modifications: adding to (b)(1) the prevention/cessation of wrongful incarceration, and striking from (b)(2) the clause that only allows prevention of crime/fraud if furthered by the lawyer's services. The report recommends adoption of ABA Rule 1.6(b)(3) (rectify fraud/crime) without modification. The Bar's Board of Governors in Sept. 2006 recommended the Committee report to the AK Supreme Court. http://www.alaskabar.org/INDEX.CFM?ID=6358&makeback=true The state court system's rules website is http://www.state.ak.us/courts/rules.htm
Illinois http://www.isba.org/ethics2000.pdf
Report of the Joint CBA/ISBA Committee on Ethics 2000, adopted in June 2004 by the unanimous ISBA Assembly. The report recommends the ABA Model Rules version of Rule 1.6 (including the rectify fraud exception), but with a few modifications, including mandating reporting when necessary to prevent death or substantial bodily injury. The IL Supreme Court's Committee on Professional Responsibility issued its report agreeing with most the CBA/ISBA recommendations. A public hearing is set for Sept. 14, 2007, and adoption of the new rules by the Supreme Court is anticipated by year end. The text of the proposed rules and the committee reports are posted (as of 9/4/07) at http://www.state.il.us/court/SupremeCourt/Public_Hearings/default.asp
A direct link to the proposed rules is: http://www.state.il.us/court/SupremeCourt/Public_Hearings/2007/04-18.pdf
Kentucky http://www.kybar.org/Default.aspx?tabid=472
The Kentucky Bar Association Ethics 2000 Committee Report, dated Nov. 16, 2006, recommends the adoption of ABA Model Rules version of Rule 1.6.Maine http://www.mebaroverseers.org/ethicsweb/ethicsmain.html
The Maine Task Force on Ethics was charged to reformulate Maine's professional responsibility rules so they would conform to the structure of the ABA Model Rules. On Nov. 6, 2006, the Task Force made its recommendations, including the adoption of ABA Model Rules version of Rule 1.6. The Task Force invites comments before January 15, 2007.
Vermont http://www.vermontjudiciary.org/Library/PDF/resources/VRPC-030205.pdf
http://www.vermontjudiciary.org/rules1/VRPCprop2-2007.pdf
http://www.vermontjudiciary.org/rules/proposed/index.htm
The Vermont Supreme Court's proposed rules, published for comments (by 4/13/2007), basically adopt the ABA version of Rule 1.6, but make reporting mandatory if necessary for the public purposes described in Rule 1.6(b)(1) to (3).
[Return to EvergreenEthics.com]