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Compilation of Historic Lawyer "Ethics" Rules
on Acting to Prevent or Rectify Client Crime or Fraud(The bold/italic attributes below were added here to emphasize selected items.)
1908 American Bar Association ("ABA") Canons of Professional Ethics
(as amended in 1928 to add Canons 33 to 45)Canon 37. Confidences of a Client. It is the duty of a lawyer to preserve his client’s confidences. ... The announced intention of a client to commit a crime is not included within the confidences which he is bound to respect. He may properly make such disclosures as may be necessary to prevent the act or protect those against whom it is threatened.
Canon 41. Discovery of Imposition and Deception. When a lawyer discovers that some fraud or deception has been practiced, which has unjustly imposed upon the court or a party, he should endeavor to rectify it at first by advising his client, and if his client refuses to forego the advantage thus unjustly gained, he should promptly inform the injured person or his counsel, so that they may take appropriate steps.
1961 ABA Journal. James A. Gardner, "The Crime or Fraud Exception to the Attorney-Client Privilege." (47 ABAJ 708 (1961)).
At page 713 -- "To sum up, when it appears to an attorney that his client has abused the professional confidence by seeking advice for the purpose of committing a wrong in the future, it is proper for the attorney to come forward and disclose the content of the communications between the parties. Generally, there would be an ethical duty to do this, but the writer has found no recognition of a legal duty to come forward and testify when the attorney is not a party to the wrongdoing. There would be serious difficulties by imposing a legal duty, and the matter is probably best regulated by being left to the conscience of the individual lawyer. ¶ With due weight being given to the lawyer's duty of devotion to the client's cause, the ethical duty to come forward is clear. When the attorney does not come forward, the question arises as to whether disclosure can be compelled." [Emphasis added.]
1969 ABA Code of Professional Responsibility
(as quickly adopted without significant change by substantially all the states)Disciplinary Rule 4-101(C). A lawyer may reveal: ...(3) The intention of his 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) His client has, in the course of representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected tribunal or person.
Note: A 1974 ABA housekeeping amendment added to DR 7-102(B)(1) the clause "except when the information is protected as a privileged communication" but only about 12 states added that. The crime-fraud exception to attorney-client privilege likely would apply to the client-fraud information.
January 1980 Discussion Draft by the ABA's 1977-83 Kutak Commission
(formally named "ABA Commission on Evaluation of Professional Standards")Rule 1.7 Confidential Information.
(b) A lawyer shall disclose information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm to another person, and to the extent required by law or the rules of professional conduct.
(c) A lawyer may disclose information about a client only:
(2) to the extent it appears necessary to prevent or rectify the consequences of a deliberately wrongful act by the client, except when the lawyer has been employed after the commission of such an act to represent the client concerning the act or its consequences;
May 1981 Proposed Final Draft by the Kutak Commission (a published booklet)
Rule 1.6 Confidentiality of Information
(b) A lawyer may reveal such information to the extent the lawyer believes necessary:
(2) to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm, or substantial injury to the financial interest or property of another;
(3) to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used;
November 1982 Final Draft by the Kutak Commission
(pullout supplement to the November 1982 issue of the American Bar Association Journal)Rule 1.6 Confidentiality of Information
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(2) 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;
(3) to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services had been used;
1983 ABA Rules of Professional Conduct (as adopted)
(As adopted after the ABA Convention Delegates rejected the Kutak Commission's proposal.)Rule 1.6 Confidentiality of Information
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm;
ABA Ethics 2000 Commission July 9, 1998 Working Draft
Source: http://www.bhba.org/ethics2000/Downloads/8.pdfRule 1.6 Confidentiality of Information
(b) A lawyer may reveal or use information relating to the representation of a client to the extent the lawyer reasonably believes is necessary to--
(1) prevent death or substantial bodily harm;
(2) prevent the client from engaging in conduct that the lawyer knows is criminal or fraudulent and that the lawyer reasonably believes is likely to result in substantial injury to the financial interests or property of another;
(3) rectify or mitigate substantial injury to the financial interests or property of another that the lawyer comes to know has resulted from a client’s crime or fraud in the furtherance of which the lawyer’s services had been used;
Ethics 2000 Commission March 23, 1999 Public Discussion Draft
Source: http://www.abanet.org/cpr/e2k/rule16draft.htmlRule 1.6 Confidentiality of Information
(b) A lawyer may reveal information relating to the representation of a client or a former 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 likely 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 rectify or mitigate substantial injury to the financial interests or property of another resulting from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
Ethics 2000 Commission Final Draft (August 2001)
Source: http://www.abanet.org/cpr/e2k-rule16.htmlRule 1.6 Confidentiality of Information
(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;
2001 ABA Convention Rejects Ethics 2000 Commission's Public Interest Exceptions
(House of Delegates approved an amended (b)(1) but rejected (b)(2), so (b)(3) was withdrawn.)
Source: http://www.abanet.org/cpr/e2k-rule16h.htmlRule 1.6 Confidentiality of Information (as adopted)
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to preventthe client from committing a criminal act that the lawyer believes is likely to result in imminentreasonably certain death or substantial bodily harm;
The American Law Institute, Restatement Third, The Law Governing Lawyers (2000)
(A respected body's treatise stating the law governing lawyers as applied in court rulings.)§ 66. Using or Disclosing Information to Prevent Death or Serious Bodily Harm
(1) A lawyer may use or disclose confidential client information when the lawyer reasonably believes that its use or disclosure is necessary to prevent reasonably certain death or serious bodily harm to a person.
[(2) and (3) omitted here]§ 67. Using or Disclosing Information to Prevent, Rectify, or Mitigate Substantial Financial Loss
(1) A lawyer may use or disclose confidential client information when the lawyer reasonably believes that its use or disclosure is necessary to prevent a crime or fraud, and:
(a) the crime or fraud threatens substantial financial loss;
(b) the loss has not yet occurred;
(c) the lawyer's client intends to commit the crime or fraud either personally or through a third person; and
(d) the client has employed or is employing the lawyer's services in the matter in which the crime or fraud is committed.
(2) If a crime or fraud described in Subsection (1) has already occurred, a lawyer may use or disclose confidential client information when the lawyer reasonably believes its use or disclosure is necessary to prevent, rectify, or mitigate the loss.
[(3) and (4) omitted here]
[Compiled by Doug Schafer] [Return to .EvergreenEthics.com/E2K/] [Return to .EvergreenEthics.com]