Last week at the Young Lawyers Luncheon all of those in attendance recited the oath of admission to the Florida Bar. I felt this was a fitting way to begin this program. Part of the oath deals with one of the lawyer’s most sacred trusts. That part states: “I will maintain the confidence and preserve inviolate the secrets of my clients . . .” This is a fundamental duty of every lawyer. It is so fundamental that most non-lawyers even know about it. It is important to understand, then, that some are seeking to erode one of the core responsibilities to our clients by proposing changes to the ethical rules.
Because we are all busy with our practice and with our families, some items slide under our radar. One of those items is a proposed change to ABA Model Rule 1.6 which would tend to weaken attorney-client confidentiality. This proposed change was recently and wisely opposed by the Florida Bar Board of Governors. It appears that the issue will be addressed once again by the American Bar Association in its annual meeting this month in San Francisco. A copy of the current Model Rule 1.6 is set forth at the end of this article.
The Model Rule currently allows well-reasoned exceptions to confidentiality. These exceptions allow a lawyer to reveal information that the lawyer reasonably believes necessary to prevent certain death or substantial bodily harm, to comply with the law or a court order, to defend a legal action for the client, or to ensure compliance with ethical rules. Two new sections have been proposed under subsection (b) which would call upon a lawyer to make a judgment call and possibly force a lawyer to police his client’s activities. These changes would be set forth in subparagraphs (b) and provide:
(2) [T]o 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) [T]o prevent, mitigate or rectify substantial 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.
Currently when a lawyer learns of a client’s intent for criminal or fraudulent conduct, the lawyer must withdraw pursuant to Rule 1.16(a)(1). The difficulty with the proposed change is that it will bring into play a lawyer’s judgment as to whether a client may commit future illegal acts making the lawyer an auditor or even a whistleblower. Such a change would certainly have a chilling effect on the lawyer/client relationship. If this relationship is indeed weakened, our ability to represent our clients effectively is further eroded.
This proposal would certainly affect lawyers in all areas of practice. This would include the corporate lawyer advising his corporate client as well as the practitioner advising an individual. The ethical rules particularly relating to confidentiality must be clear and fair. The current rule in force and effect provides exceptions to the privilege in obvious and appropriate circumstances. If clients, corporate or individual, become concerned that their communications with their attorney may be disclosed at some future date, some clients may not obtain the legal services they need. Further, lawyers could be pressured by vigorous governmental agencies into revealing confidential communications from their clients.
The Florida Bar Board of Governors is to be applauded for their decision in opposing this amendment to Model Rule 1.6. We can only hope that the ABA will follow the lead of The Florida Bar and reject this amendment so that we may continue to preserve inviolate the secrets of our clients.
Bar news
First of all, congratulations to Ray Driver who is the new president of the Young Lawyers Section.
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The Jacksonville Bar offices will not be moving for the next three years. We have signed a three-year lease with Riverplace Tower which has been our home for the last four years.
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Please also mark your calendars for Sept. 18 at the Omni when we will have Florida Bar president Miles McGrane III as our featured speaker. Also on the afternoon is our first CLE program sponsored by the Solo and Small Firm Section entitled “Staying Competitive in Today’s Market.”
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On October 16, we will have Chief Judge John Moran give a State of the Courts as well as State of the New Courthouse talk at our monthly luncheon at the Omni.