ABA Votes to Ease Client Secrets Rule

The American Bar Assn. on Monday tentatively approved a new model ethics rule that would make it easier for lawyers to divulge client secrets to prevent violent crime or substantial bodily injury caused by people or products.

The new rule was passed by the ABA’s House of Delegates by a 243-184 vote after a spirited debate, including strong opposition from California delegates who maintained that such disclosures could erode attorneys’ fundamental duty to exercise undivided loyalty to their clients.

The ABA’s current model rule states that a lawyer may reveal information obtained in confidence in a very limited number of circumstances. Among them is when the disclosure could prevent a client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm.

Under the proposed new rule, a lawyer could reveal confidential information to prevent “reasonably certain death or substantial bodily harm.” The new rule does not require that the death or bodily harm be “imminent,” nor does it require that a potential crime be involved or that the client is the person responsible for the potential harm or death.

Proponents of the change, such as New York attorney Seth Rosner and Boston University law professor Nancy Moore, said it reflects a concern about the overriding importance of human life.

Rosner advocated dropping the “imminence” and criminality requirements because he believes a lawyer ought to be able to breach confidentiality, for example, when he learns that a client or someone associated with a client has either deliberately or negligently dumped toxics into a city water supply. The effect of the dumping might not “be felt for years,” but the lawyer should be able to act swiftly, Rosner said.

Samuel L. Bufford, a federal bankruptcy judge in Los Angeles, urged that the proposal be defeated. “Otherwise, we turn the lawyer into a stealth informant against the client,” said Bufford, who headed a Los Angeles County Bar Assn. committee that reviewed the proposals. “This is a slippery slope. . . . This proposal alone would authorize disclosures that should not be permitted.”

U.S. 5th Circuit Court of Appeals Judge Patrick Higginbotham of Dallas countered that the rule does not force lawyers to act. “It says you may make a disclosure; you are not obligated,” Higginbotham said.