Title

'In the Interests of Justice': Balancing Client Loyalty and the Public Good in the Twenty-First Century

Document Type

Article

Publication Date

2002

ISSN

0015-704X

Language

en-US

Abstract

Shortly after the American Bar Association ("ABA") met to consider the Ethics 2000 Commission's proposals (the "Ethics 2000 Proposals") to revise the ABA Model Rules,' I participated in a radio program with Deborah Rhode and Sean SeLegue.2 The subject of the program was the ABA House of Delegates's votes on the Ethics 2000 Proposals to revise Model Rule 1.6, which governs confidentiality of client information.3 The House had voted to broaden the circumstances in which lawyers may disclose otherwise confidential information regarding clients to prevent death or substantial bodily harm, while maintaining the rule's current prohibition on disclosure to prevent or rectify substantial economic harm, even when the lawyers' services were used by their clients in furtherance of a crime or fraud.4 Sean opposed each of the Ethics 2000 Proposals, arguing that they undermined the duty of loyalty owed by lawyers to their clients.5 Deborah supported the Ethics 2000 Proposals, but argued that they did not go far enough to further the public good, particularly in their failure to require lawyers to disclose information when necessary to prevent death or substantial bodily harm.6 As Chief Reporter to the Ethics 2000 Commission, I supported the Ethics 2000 Proposals, arguing that they struck just the right balance between preserving loyalty to clients and advancing the public good. What I would like to do in this essay is expand on this argument. In addition, I would like to address Deborah's further argument that the ABA's continuing refusal to permit any disclosure to prevent or rectify substantial economic harm, despite the Ethics 2000 Commission's suggestion to narrowly tailor an exception where the lawyers' services are used, is yet additional evidence that lawyers have failed to regulate themselves in the public interest, and that the time has therefore come for direct public regulation of lawyers.1

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