Confidentiality and Candor Under the 2006 Washington Rules of Professional Conduct

Brooks Holland, Confidentiality and Candor Under the 2006 Washington Rules of Professional Conduct, 43 Gonz. L. Rev. 327 (2008).

[PDF]    [Westlaw]    [LexisNexis] %CODE1%
I. Introduction

On September 1, 2006, new Washington State Rules of Professional Conduct (“RPC”) became effective. The 2006 RPC represent a several year effort by the Washington State Bar Association (“WSBA”) Ethics 2003 Committee to update the RPC, which had not been updated since 1985.[1] The 2006 RPC, as ultimately enacted,[2] reflect several important policy considerations that substantially have altered the ethical playing field for Washington lawyers.

This article examines this revised ethical playing field, focusing principally on the twin duties of client confidentiality under RPC 1.6 and candor to tribunals under RPC 3.3. These ethical duties permeate daily legal practice for most lawyers and present some of the most difficult ethical challenges that lawyers face. The 2006 RPC significantly revise the previous understanding of these duties in Washington. This article accordingly undertakes a detailed doctrinal analysis and critique of the RPC’s amended approach to confidentiality and candor.

Part II of this article presents a brief general background to the RPC and their relationship to the influential American Bar Association Model Rules of Professional Conduct (“Model Rules”). Part III considers 2006 RPC 1.3, which may reveal a broader vision of ethical lawyer advocacy under which the rules of confidentiality and candor should be evaluated. Part IV dissects 2006 RPC 1.6’s regulation of client confidentiality, highlighting a new confidentiality exception that the 2006 amendments impose on Washington lawyers: a mandatory duty to disclose when a client presents a reasonably certain threat of death or serious physical injury to a third person. After detailing the background to and content of this mandatory duty, Part IV assesses the potential efficacy of this duty as a policy choice, and raises four questions that lawyers should consider when practicing under this duty. %CODE2%
%CODE3%
Part V of the article tackles 2006 RPC 3.3 and the issue of attorney candor to tribunals. Part V not only reviews the important changes to RPC 3.3 under the 2006 amendments, but also examines the relationship that 2006 RPC 3.3 shares with RPC 1.6 in defining the scope of, and the limitations to, the confidentiality by which lawyers foster and protect meaningful attorney-client relationships.

II. Background

The Washington RPC last were overhauled in 1985, and at the time, they largely paralleled the Model Rules.[3] The Model Rules have evolved significantly since the 1980s, [4] however, and an increasing number of jurisdictions have updated their ethical rules to reflect the most recent iterations of the Model Rules.[5] Responding to a call by the ABA Ethics 2000 Committee and the Conference of Chief Justices for increased uniformity in ethical rules between jurisdictions,[6] the WSBA undertook revision of the 1985 RPC to conform the RPC to the most recent Model Rules.[7] The WSBA Ethics 2003 Committee emphasized that greater uniformity between the RPC and the Model Rules would help Washington lawyers better anticipate ethical requirements in other jurisdictions, and non-Washington lawyers better abide by Washington standards.[8] Uniformity also would stabilize client expectations between jurisdictions, and improve law students’ required studies and lawyers’ ability to obtain CLE credits.[9] As a result, the 2006 RPC more closely parallel the modern Model Rules in both form and substance.[10]

The most immediately noticeable change to the RPC is the inclusion of official explanatory comments following each rule.[11] The inclusion of Model Rules-based commentary was viewed as critical because of the added substance and clarity that commentary would provide to practitioners and courts, especially since Washington courts, the WSBA Professional Responsibility Counsel, and the WSBA Rules of Professional Conduct Committee previously have relied on Model Rules Comments to interpret parallel RPC provisions.[12] The Preamble to the 2006 RPC clarifies the role of the Comments: “[t]he Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. . . . The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.”[13]

The Model Rules were not adopted uncritically, however, even in the structure of the RPC Comments themselves. For example, some Model Rules Comments were adopted but modified to suit Washington practice norms.[14] These modified Comments are labeled “Washington Revision.”[15] If a 2006 RPC contains a Comment with no Model Rule counterpart, the 2006 RPC Comment is placed after the Comments corresponding to the Model Rule Comments, under “Additional Washington Comments.”[16] Additionally, if a Model Rule Comment is deleted from the 2006 RPC Comments, the corresponding 2006 RPC Comment is labeled “Reserved” and left blank.[17]

Several substantive Model Rules also were supplemented, modified, or rejected altogether to reflect Washington practice norms and expectations, as well as evolving Washington policy. The 2006 RPC consequently include a few unique ethical provisions unaddressed by the Model Rules that “traditionally and successfully [have] been addressed in Washington.”[18] For example, 2006 RPC 1.15B establishes detailed rules regulating lawyer handling of trust account records. These trust account rules do not exist under the Model Rules.

With other rules, the drafters concluded that an “existing [RPC] is clearly more suited to the regulation of Washington lawyers than its Model Rule counterpart.”[19] An example can be found in 2006 RPC 8.3, which modifies the Model Rule standard governing lawyers’ duty to report misconduct by other members of the bar.[20] Model Rule 8.3 provides that when a lawyer knows of a lawyer or judge’s violation of an ethical rule, and that violation “raises a substantial question” about the lawyer’s “honesty, trustworthiness or fitness as a lawyer,”[21] or the judge’s “fitness for office,”[22] the lawyer “shall inform” the relevant professional authority.[23] Although 2006 RPC 8.3 similarly encourages Washington lawyers to report ethical misconduct by lawyers and judges, it substitutes “should inform” for the Model Rule’s “shall inform.”[24] The 2006 RPC 8.3 thus remains an aspirational ethical standard—as RPC 8.3 was under the 1985 RPC[25]—rather than the mandatory imperative of Model Rule 8.3.[26] Indeed, 2006 RPC 8.3 definitively prioritizes client confidentiality over public knowledge of ethical misconduct,[27] whereas Model Rule 8.3 authorizes lawyers to report such misconduct even if the report will disclose confidential information.[28]

Notwithstanding the importance of these and the many other 2006 amendments to the RPC,[29] two provisions merit special attention: RPC 1.6, governing client confidentiality, and RPC 3.3, respecting lawyer candor to tribunals.[30] In particular, RPC 1.6 underwent a substantial overhaul and now incorporates not only important Model Rule provisions, but also Washington-specific ethical obligations that every lawyer must know and weigh carefully when representing clients.

A more complete understanding of 2006 RPC 1.6 and 3.3, however, requires consideration of RPC 1.3.[31] Although modified from Model Rule 1.3 by only a single word in one Comment, the revised RPC 1.3 may reveal the WSBA and Washington Supreme Court’s broader vision for ethical lawyer conduct.[32] The rest of the 2006 RPC, including RPC 1.6 and 3.3, accordingly should be evaluated and interpreted in light of this broader vision.

III. Rule 1.3: Diligence

2006 RPC 1.3 itself remains unchanged from 1985 RPC 1.3, which already read identically to Model Rule 1.3:

A lawyer shall act with reasonable diligence and promptness in representing a client.[33]

Nevertheless, in Comment 1 to RPC 1.3, the Washington Supreme Court replaced “zeal in advocacy” under the Model Rules with “diligence in advocacy” to describe lawyers’ professional duty in representing client or cause.[34] This purposeful change in word choice is not explained in 2006 RPC 1.3 or in Comment 1 itself. But this change to RPC 1.3 Comment 1 strongly resembles changes to the RPC Preamble, which were proposed and explained by the WSBA Board of Governors. This modification to the Preamble may inform an understanding of the Washington Supreme Court’s change from “zeal” to “diligence” in 2006 RPC 1.3 Comment 1.[35]

In language nearly identical to the Model Rules Preamble, the 2006 RPC Preamble broadly defines the functions, responsibilities, and priorities of lawyers. RPC Preamble paragraphs 2,[36] 8,[37] and 9,[38] were changed, however, from the Model Rules’ corresponding paragraphs to substitute the words “conscientious and ardent” for the Model Rules’ choice of the word “zeal.” In a July 2004 report explaining the WSBA Board of Governors’ revisions to the Ethics 2003 Committee’s recommendations,[39] the Board of Governors explained this change to “conscientious and ardent” in the Preamble: “Owing to its etymology, the word “zealous” in this context could inappropriately be interpreted to condone the extreme or fanatical behavior of a type that would be inconsistent with a lawyer’s professional obligations.”[40]

The Board of Governors emphasized that “Washington has, since the adoption of the RPC in 1985, scrupulously avoided use of such terminology.”[41] Yet, despite the WSBA’s scrupulous avoidance of “zeal” to describe appropriate lawyer advocacy, the Ethics 2003 Committee and the Board of Governors left the Model Rules’ choice of “zeal in advocacy” in the WSBA’s proposed version of RPC 1.3—ironically, the very ethical rule that defines appropriate lawyer advocacy.[42] Nor did the Board of Governors’ report define “conscientious” and “ardent,” and these terms are nowhere defined in the 2006 RPC.[43]

Many lawyers may perceive little practical difference between “conscientious and ardent” and “zealous.” The WSBA, however, apparently did, enough to isolate “zeal” for change out of the dense thicket of ethical language that surrounds that term in the Model Rules Preamble. And, the Washington Supreme Court’s parallel rejection of “zeal” in Comment 1 to RPC 1.3 indicates the court’s similar concern that in this context too, “zeal in advocacy” as an ethical norm “could inappropriately be interpreted to condone the extreme or fanatical behavior of a type that would be inconsistent with a lawyer’s professional obligations.”[44] This textual change to 2006 RPC 1.3 Comment 1 consequently signals a firm rejection in Washington of the traditional “zealous advocacy” model.

The traditional duty to advocate “zealously” has been viewed as a “hallmark of attorney-client relationships,”[45] and reflects the professional conception that “[a]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.”[46] A lawyer therefore was expected to “represent [a] client zealously within the bounds of the law.”[47] This partisan approach to advocacy still is defended “as instrumental in protecting client autonomy and in nurturing client loyalty and trust,”[48] and many contemporary courts “generally accept the principle that lawyers have a duty to zealously represent their clients.”[49]

The zealous advocacy model, however, has increasingly become associated with “Rambo” lawyer tactics,[50] where “victory in litigation justifies any conduct,”[51] up to and including a “‘scorched earth’ policy.”[52] These “Rambo” lawyer tactics are seen as contributing to a damaged public perception of the legal profession, and to a marked decrease in professional civility.[53] More significantly, “[a]dvocates’ zeal can also blind them to their other ethical obligations or cause them to violate other professional duties.”[54]

The WSBA Board of Governors’ expressed concern in the RPC Preamble over the “extreme or fanatical [lawyer] behavior of a type that would be inconsistent with a lawyer’s professional obligations,”[55] aligns neatly with these criticisms of the zealous advocacy model. 2006 RPC 1.3 Comment 1 does not indicate that the Washington Supreme Court had any different concern for “zeal” in mind when it substituted “diligence” for “zeal.” Rather, 2006 RPC 1.3 Comment 1 and the RPC Preamble would appear to work in tandem in defining appropriate lawyer advocacy: Washington lawyers should not subscribe to the law-as-war, win at all costs approach to lawyering associated with the more aggressive iterations of the zealous advocacy model. The ethical message of the 2006 RPC instead is one of balance: lawyers should balance their obligation to advocate “ardently” and “diligently” with a broader sense of “conscience.”

This type of professional balance would appear to draw at least implicitly on the “comprehensive law movement,”[56] or more specifically, the “therapeutic jurisprudence” movement.[57] Advocates of therapeutic jurisprudence explain it as “a perspective that regards the law as a social force that produces behaviors and consequences . . . and wants us to see whether the law can be made or applied in a more therapeutic way.”[58] Born in about 1990,[59] therapeutic jurisprudence prioritizes an “ethic of care” in lawyers’ practice,[60] and “focuses on the extent to which the law may enhance or inhibit the well-being of those who are affected by it.”[61] This holistic approach to legal practice developed out of the comprehensive law movement, which views the “[l]aw as a healing profession,” largely in response to “the ‘tripartite crisis’ in the legal profession of deprofessionalism, low public opinion of lawyers, and lawyer distress.”[62] The movement especially emphasizes the “emotional devastation that can result from traditional adversarial litigation.”[63]

The resulting practice philosophies have varied,[64] but certain broad-level principles remain constant: lawyers should examine their practice through a therapeutic lens,[65] through which lawyers seek to minimize harm and optimize human wellbeing.[66] While this approach “may initially focus on the wellbeing of the individual client at hand, [it] often seek[s] to preserve or enhance the wellbeing of all of the individuals involved in the matter.”[67] “In this way, law and medicine can been seen to share a common goal: the principle of ‘above all, do no harm.’”[68]

Of course, the textual change from “zeal” to “diligence” in 2006 RPC 1.3 Comment 1 does not mandate therapeutic jurisprudence as the ethical norm in Washington State. And, nothing in the 2006 RPC indicates that the WSBA or Washington Supreme Court intended to cramp lawyer practice styles to that degree. Indeed, the more aggressive visions of therapeutic advocacy[69] have been criticized sharply as too paternalistic of clients, compromising client autonomy for grander—or simply lawyer—notions of justice and “best” outcomes, and damaging to our well-tested adversarial model of dispute resolution.[70]

Yet, a “therapeutic” perspective may bring the intended notion of “conscientious” advocacy into sharper focus, and more fully reveal the professional balance that the WSBA and Washington Supreme Court had in mind when they directed Washington lawyers to orient themselves to diligence and not zeal—a balance between a lawyer’s outcome-centered professional interests and his or her broader social, legal and client obligations. This refined ethical balance in turn should inform many of the other 2006 amendments to the RPC, including the changes to the rules governing client confidentiality and candor to tribunals.

IV. Rule 1.6: Confidentiality

RPC 1.6 defines and regulates client confidentiality, and RPC 1.6 received some of the most significant amendments in 2006 of all the RPC.[71] The 1985 version of RPC 1.6 had varied substantially from the current Model Rule 1.6.[72] The 2006 amendments to RPC 1.6 retained a key aspect of 1985 RPC 1.6, but also adopted several components of Model Rule 1.6. Additionally, the 2006 amendments imposed a significant mandatory ethical duty not present in either the 1985 RPC 1.6 or Model Rule 1.6. A careful analysis of these changes to the rules of confidentiality therefore is required.

A. Confidentiality

“Confidentiality is the bedrock principle of legal ethics,”[73] and it traditionally is defended as “necessary ‘to encourage full and frank communication between lawyers and their clients.’”[74] Model Rule 1.6 reflects a modern trend to expand the scope of the information that lawyers must keep confidential,[75] defining confidentiality broadly to protect any “information relating to the representation of a client.”[76] 1985 RPC 1.6(a) did not extend confidentiality quite so far, protecting only “confidences” and “secrets.”[77] A “confidence” meant information subject to attorney-client privilege,[78] and “secret” referred to “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.”[79]

2006 RPC 1.6(a) embraces the Model Rule definition of confidentiality. Comment 19 to 2006 RPC 1.6 indicates that this provision “should be interpreted broadly” and “includes, but is not necessarily limited to, confidences and secrets.”[80] Under 2006 RPC 1.6, therefore, Washington lawyers should not define client confidentiality by whether information is harmful to the client or negative in nature, by whether the client has requested non-disclosure, or even by whether the information comes directly from the client. Rather, so long as the information relates to the lawyer’s representation of the client, the lawyer “shall not” reveal the information without express or implied client consent, or as required or permitted by one of the disclosure exceptions in 2006 RPC 1.6(b).[81] Although 1985 RPC 1.6(b) also provided for exceptions to the duty of confidentiality, these exceptions were amended heavily in 2006 RPC 1.6(b), and thus require close examination.[82]

B. Disclosure of Confidential Information

Model Rule 1.6(b) permits, but does not require, disclosure of confidential information in several circumstances involving client misconduct or a threat of harm to others.[83] 1985 RPC 1.6(b), by contrast, permitted disclosure only to the extent a “lawyer reasonably believe[d] necessary . . . [t]o prevent the client from committing a crime.”[84] 2006 RPC 1.6(b) was revised more closely to resemble, but by no means wholly to imitate, the disclosure provisions of Model Rule 1.6(b).[85]

1. Discretionary Disclosure

2006 RPC 1.6(b)(2) retains the exception contained in 1985 RPC 1.6(b)(1), which permits lawyers to disclose confidential information to prevent a client from committing a “crime.”[86] Comment 20 to 2006 RPC 1.6 notes that this rule “is significantly broader than the corresponding exception in the Model Rule,” which permits disclosure of a client’s crime or fraud only to prevent “substantial injury” to financial or property interests in furtherance of which the client has used the lawyer’s services.[87] Under 2006 RPC 1.6(b)(2), by contrast, the client’s crime need not prove of any particular magnitude or have any relationship to the lawyer’s services; the lawyer need only reasonably believe that disclosure is necessary to prevent the crime.[88] Disclosure remains discretionary, however, so a lawyer will not violate the RPC by choosing not to disclose,[89] and the RPC emphasize that the option of disclosure “‘should not be carelessly invoked.’”[90] In exercising this discretion, lawyers “may consider such factors as the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction and factors that extenuate the conduct in question.”[91]

Although not contained in the Model Rules, 2006 RPC 1.6(b)(2)’s broad “any crime” exception to confidentiality is shared by twenty-seven other states,[92] so Washington by no means stands alone by maintaining it. Importantly, this exception is solely forward-looking in nature: it permits disclosure of confidential information only to prevent a still unrealized wrong or harm from occurring.[93] Some jurisdictions limit confidentiality exceptions to circumstances where the harm to be prevented remains unrealized, a policy choice to prioritize confidentiality when breaching it only will reveal, not avert, a harm.[94]

Model Rule 1.6(b)(3) provides a limited exception to this forward-looking norm by permitting disclosure not only to prevent, but also to “mitigate or rectify,” substantial injury to financial or property interests as a result of a client’s past client crime or fraud.[95] This exception is restricted to cases where the client has used the lawyer’s services in furtherance of that crime or fraud.[96] 2006 RPC 1.6(b)(3) adopts this exception, which empowers a lawyer to remedy past client harms that the lawyer unwittingly has aided.[97]

Interestingly, the WSBA Ethics 2003 Committee and the Board of Governors proposed that Washington should reject this Model Rule provision, instead proposing adoption only of the Model Rule’s forward-looking fraud disclosure provision in Model Rule 1.6(b)(2).[98] The Ethics 2003 Committee Confidentiality Subcommittee “was concerned about trying to define ‘mitigate or rectify’ so that a lawyer would know the steps to take,”[99] as well as the “adverse impact this provision would have upon the client’s willingness to communicate freely with the client’s lawyer.”[100] By an 8-2 vote, the Ethics 2003 Committee rejected a backward-looking RPC 1.6(b)(3) because of its concern over the ambiguity of a “rectify or mitigate” standard, and because the committee believed that these circumstance already adequately were addressed by the interaction between RPC 1.6(b)(2)’s “any crime” provision’s and RPC 4.1(b).[101]

The Washington Supreme Court ultimately disagreed and adopted Model Rule 1.6(b)(3)’s discretionary backward-looking disclosure provision as 2006 RPC 1.6(b)(3). By adopting 2006 RPC 1.6(b)(3), Washington joins a growing crowd of twenty-seven other jurisdictions that authorize backward-looking disclosure under circumstances in line with Model Rule 1.6(b)(3).[102]

If a lawyer elects to disclose confidential information under either 2006 RPC 1.6(b)(2) or 2006 RPC 1.6(b)(3), the RPC, like the Model Rules, demand that the lawyer still endeavor to protect client confidentiality in the disclosure process.[103] The lawyer may disclose confidential information “only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes.”[104] Any “disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose,”[105] and “should be made in a manner that limits access to the information to . . . persons having a need to know it.”[106] Moreover, the lawyer should seek “protective orders or make other arrangements minimizing the risk of avoidable disclosure.”[107]

2. Mandatory Disclosure

Model Rule 1.6(b)(1) permits, but does not require, a lawyer to disclose confidential information to the extent necessary to prevent reasonably certain death or substantial bodily harm.[108] Model Rule 1.6(b)(1)’s permissive authorization represents the majority rule,[109] and reflects the judgment that for disciplinary purposes, lawyers sit in the best position to evaluate and counsel their clients, and to judge whether client confidentiality should yield to individual safety interests.[110]

In surely the most controversial amendment to RPC 1.6, and perhaps to the RPC in their entirety, 2006 RPC 1.6(b)(1) dictates that “[a] lawyer to the extent the lawyer reasonably believes necessary . . . shall reveal information relating to the representation of a client to prevent reasonably certain death or substantial bodily harm.”[111] This mandatory reporting duty to prevent serious physical harm is the minority rule, currently present in only twelve other states’ ethical codes: Arizona, Connecticut, Florida, Illinois, Iowa, Nevada, New Jersey, North Dakota, Tennessee, Texas, Vermont, and Wisconsin.[112]

Comment 6 to 2006 RPC 1.6 identifies the Rule’s rationale:

Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients . . . Paragraph (b)(1) recognizes the overriding value of life and physical integrity . . . .[113]

This mandatory reporting duty was much debated within the WSBA Ethics 2003 Committee,[114] garnering only three votes in favor of it.[115] 2006 RPC 1.6(b)(1) remained a discretionary disclosure in the WSBA Board of Governors’ report and recommendation to the Washington Supreme Court.[116] This ethical duty thus comes directly from the Washington Supreme Court.

The theoretical debate over a mandatory disclosure duty in cases of threatened death or substantial bodily harm has been explored in great detail,[117] and will not be rehashed here. The Washington Supreme Court has prioritized core individual safety interests over the confidentiality interests of clients, and weighty policy considerations justify this decision.[118] A remaining concern with 2006 RPC 1.6(b)(1)’s mandatory disclosure duty is instead pragmatic: that this disclosure duty may do little to protect third parties from client violence, and ultimately it may undermine this harm-reduction objective by decreasing the likelihood that lawyers will detect and report credible threats of serious harm.

Bar disciplinary committees typically are comprised mostly of lawyers.[119] The lawyers on these committees themselves work with clients in one form or another, and thus likely prize confidentiality principles as much as any other lawyer.[120] Moreover, while these committees often can pinpoint when a lawyer has mishandled client funds or engaged in personally dishonest conduct, they know as well as any other lawyer the difficulty of estimating a client’s intent to engage in future misconduct clearly enough that the great principle of confidentiality should yield.[121] The natural instinct of disciplinary committees may be to extend lawyers the benefit of the doubt in all but the clearest of cases—assuming that many of these non-disclosure violations are even reported in the first place—particularly under the “reasonableness” standard that governs. This instinct potentially is confirmed by the dearth of publicly reported lawyer sanctions in mandatory disclosure jurisdictions for non-disclosure of a reasonably certain threat of death or substantial bodily harm.[122] An unenforced ethical rule quickly becomes an ineffectual rule at changing lawyer behavior,[123] and consequently a rule that accomplishes public relations objectives more than actual harm reduction.

Perhaps the harm-reduction principle itself serves an important salutary purpose, even if it does not advance that objective significantly. But, this ethical mandate may frustrate the objective of harm reduction. Lack of training and education may represent one of the major reasons why lawyers respond ineffectively to many perceived threats of harm by a client.[124] Absent a better sense of what to do, many lawyers simply will resort to the safe bet: avoid the subject as much as possible, and maintain client confidentiality.[125] In discretionary disclosure jurisdictions, the Bar and continuing legal education market have a reason to provide a wide-range of training to help lawyers more effectively negotiate these complicated and delicate interactions with clients. In a mandatory disclosure jurisdiction, however, such training and education is verboten, because lawyers have no discretion to exercise—they must disclose whenever they reasonably believe disclosure necessary to avert reasonably certain harm. Combine the resulting lack of training and education with an under- or non-enforced ethical rule, and the result is a net loss: lawyers with no practical incentive to disclose client confidences with little or no training and education to help them resolve these difficult situations.

Ironically, this net loss to harm reduction may become even worse if the mandatory disclosure duty instead is enforced by consistent lawyer sanctions for failures to disclose. Once lawyer sanctions for non-disclosure are reported, many lawyers may respond by creating a “three wise monkeys”[126] defense for themselves by ensuring that they do not permit their professional relationships and conversations with clients to develop to a point likely to put a lawyer on notice of such potential dangers. More specifically, an enforced mandatory disclosure duty may deter lawyers from exploring a client’s threat to determine whether the client is sincere or just blowing off steam, or from attempting to persuade a seemingly sincere client to abandon the threat. Instead, many lawyers will stop or change the conversation, leave the room, issue a preemptive “don’t go there” warning, or otherwise ensure that their interaction with the client does not permit, let alone invite, a “reasonably certain” threat to develop.

The formula is straightforward: the more a lawyer engages a threatening client, the more likely the client’s threat will be revealed as a “reasonably certain” threat that triggers the mandatory disclosure duty. As a result, some lawyers simply will disengage. This buried-head response naturally will undercut the harm-reduction objective motivating the mandatory disclosure duty, since lawyers can disclose potential harm only if they see it. Lawyers who go out of their way not to see potential harm will have nothing to disclose.[127]

By contrast, a discretionary disclosure duty, such as Model Rule 1.6(b)(1), encourages lawyers to have the sort of professional relationships and conversations that more likely will alert the lawyer to such a threat, because lawyers will know that they ethically retain a choice.[128] Two harm-reduction benefits may result. First, lawyers more likely will employ their skills of negotiation and persuasion with clients to deter them from acting on their threat.[129] Second, lawyers more likely will confirm for themselves the genuine threats of serious physical harm, in response to which many lawyers likely will opt to report.[130] A benefit to confidentiality interests also may follow from a discretionary rule: by having the confidence to inquire further into perceived client threats, lawyers more accurately can dismiss empty threats as empty threats, thus decreasing the rate of unnecessary disclosure of confidential information.

Perhaps these pragmatic concerns will prove overstated or wholly off-base. But even if ultimately not, the WSBA and Washington Supreme Court are unlikely to revisit this ethical mandate any time soon without first giving its efficacy a meaningful opportunity to be assessed. Consequently, lawyers must begin evaluating how to conform their professional relationships with individual clients to this new ethical duty. This evaluation necessitates consideration of several critical questions raised by 2006 RPC 1.6(b)(1)’s mandatory disclosure duty: When precisely is the duty to report under 2006 RPC 1.6(b)(1) triggered? What is the scope of this duty, once triggered? Will the attorney-client privilege still attach to information a lawyer is required to disclose? Will lawyers who fail to disclose when required be liable in tort to affected third parties under a Tarasoff theory?[131] The following sections examine each of these questions.

a. When is the duty to report triggered?

2006 RPC 1.6(b)(1) mandates disclosure of confidential information in a broad range of circumstances involving threats of death or substantial bodily harm.[132] Of the twelve other states that impose a mandatory disclosure duty in cases of threatened serious harm, only three—Florida, North Dakota, and Tennessee—impose a duty to disclose in as broad of circumstances as Washington’s disclosure duty.[133]

2006 RPC 1.6(b)(1) requires a lawyer to disclose confidential information when the lawyer “reasonably believes” that disclosure is necessary to prevent “reasonably certain death or substantial bodily harm.”[134] Comment 6 to 2006 RPC 1.6 clarifies that “[s]uch harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.”[135] The latter clause makes clear that a lawyer must disclose even a non-imminent threat of harm if the lawyer nevertheless believes the disclosure reasonably necessary to avert a future harm. Three of the additional twelve states that mandate disclosure to prevent death or substantial bodily harm limit that duty to cases where the threatened harm is imminent.[136]

An example of a sufficient non-imminent threat of harm is presented in 2006 RPC 1.6 Comment 6:

[A] lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply must reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims.[137]

This hypothetical illustration further reveals 2006 RPC 1.6(b)(1)’s breadth. To trigger the duty to disclose, the threatened harm need not constitute a crime or even be intended by the client. Rather, the duty is triggered even if the threatened death or substantial bodily harm would be caused by non-criminal, even accidental conduct, so long as the lawyer reasonably believes that disclosure will avert a reasonably certain threat of harm.[138] By contrast, eight of the twelve other states imposing a mandatory disclosure duty expressly limit that duty to cases of criminal conduct.[139]

Moreover, a disclosure duty such as the duty in 2006 RPC 1.6(b)(1) naturally brings to mind cases where the client says, in one form or another, “I’m going to kill someone.” But, the language of RPC 1.6 does not limit the duty to disclose to cases when a client explicitly threatens death or serious bodily harm.[140] RPC 1.6 Comment 6 confirms this reading of RPC 1.6, as the client in the hypothetical case presented in Comment 6 did not explicitly threaten the future harm to the town’s residents. Rather, the lawyer appeared to infer the threat from the client’s course of conduct and other information available to the lawyer.[141] Consequently, 2006 RPC 1.6(b)(1)’s disclosure duty may be triggered if the lawyer reasonably infers a threat of death or substantial bodily harm from the client’s conduct or any other source of information.

Perhaps the most significant factor enlarging the breadth of 2006 RPC 1.6(b)(1)’s disclosure duty is that nothing limits it to cases where the client presents the threat of harm. On the contrary, under the plain text of RPC 1.6(b)(1), if the lawyer is presented with a reasonably certain threat of death or substantial bodily harm from any source—the client or anyone or anything else—the lawyer must disclose any confidential information in his or her possession necessary to prevent that harm. Consider, for example, a client who reveals that a co-defendant or another individual may kill or seriously harm a witness or cooperating accomplice. If the lawyer believes this harm is reasonably certain to occur, the lawyer must disclose the client’s confidential revelation if necessary to prevent this harm. This duty applies even if the lawyer has no reasonable basis to suspect the client of involvement in the threatened harm, and instead reasonably believes that the client only has advised the lawyer of what the client has learned from another source. In another example, if a lawyer’s client is a victim of domestic violence who reveals in confidence that her abusive husband is engaging in physical abuse of the children or of continuing abuse of her, the lawyer must disclose that confidential information if disclosure is necessary to prevent the future abuse.[142] Eight of the twelve other states mandating disclosure, by contrast, limit that duty to cases where the client personally presents the threat of harm.[143]

Only Florida, North Dakota, and Tennessee have parallel mandatory disclosure provisions as broad as Washington’s duty under 2006 RPC 1.6(b)(1), where lawyers must disclose non-imminent and non-criminal threats of death or substantial bodily harm, even if the threat is not created by the client, so long as disclosure of the client’s confidential information will prevent a reasonably certain threat of serious harm.[144] This approach to mandatory disclosure appears strongly to prioritize harm prevention as the overriding policy aim justifying disclosure, independent of any wrongdoing by the holder of the confidentiality interest.

The breadth of this duty, however, does not mean that Washington lawyers should have an overly quick trigger finger for disclosing confidential information. On the contrary, 2006 RPC 1.6 Comment 23 cautions that “exceptions to the general rule prohibiting unauthorized disclosure of information relating to the representation ‘should not be carelessly invoked.’”[145] These potentially competing directives place lawyers in a rather tenuous predicament: disclose too precipitously and violate one ethical duty—confidentiality[146]—but guard confidentiality too closely and violate another ethical duty—to protect third parties from reasonably certain threats of serious physical harm. In the end, lawyers may need to seek refuge in the RPC Preamble’s admonition that “[t]he Rules of Professional Conduct are rules of reason,”[147] and expect that so long as reasonable lawyers could disagree about the meaning and import of an alleged threat, a lawyer’s election of non-disclosure will not violate 2006 RPC 1.6(b)(1).[148]

b. What is the scope of this duty, once triggered?

2006 RPC 1.6 Comment 14 makes clear that once a lawyer perceives a reasonably certain threat of death or substantial bodily harm, the lawyer first may attempt preventative action prior to disclosing: “Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure.”[149] The use of “obviate” necessarily references an already sufficient threat that is eliminated by subsequent action,[150] not simply a threat that has not yet crossed the line into “reasonably certain.” Thus, a lawyer may bring his or her skills of persuasion to bear on a client, and if successful at negating the previous threat, the lawyer seemingly need not disclose it.

If the client will not obviate the need for disclosure, the lawyer must disclose any confidential information in his or her possession necessary to prevent the harm. This absolute rule leaves lawyers in a difficult position in cases where they face competing harms, a circumstance that will likely arise in cases where the client does not personally present the threat of serious harm.

For example, consider a lawyer who represents a domestic violence victim who confides to her lawyer that she has returned to her chronically abusive spouse in violation of an order of protection forbidding him from contacting her. If the lawyer reasonably believes that this information demonstrates a reasonably certain threat of serious harm to the client, the lawyer must disclose the confidential information necessary to prevent that harm. Yet, this disclosure may create additional threats of harm to the client herself—when confronted with the client’s disclosure and its ramifications, the husband may assault or otherwise harm the client for revealing this information to her lawyer. Consider also the client who tips his lawyer to a co-defendant or other person’s intention to kill a witness or a cooperating accomplice. The lawyer would be duty-bound to disclose this information to prevent this harm, but the consequence might be equal harm to the client who confided in the lawyer or even to the disclosing lawyer him or herself. In these circumstances, “significant public policy concerns suggest that attorneys should not be held responsible for failing to act for the protection of their victim-client.”[151]

This problem of competing harms does not arise only in cases where the client remains free of responsibility for the threatened harm, or where the competing harms involve comparable physical harms. For example, lawyers not uncommonly learn of an HIV-positive client’s medical condition in the course of representing the client. If the lawyer learns that the client is HIV-positive and reasonably believes that the client will expose his or her sexual partner or another individual—even under non-criminal circumstances[152]—2006 RPC 1.6(b)(1) would appear to require the lawyer to disclose any confidential information necessary to avert that threat. Yet, this disclosure may violate medical privacy laws,[153] pitting the lawyer’s ethical obligations against other significant legal obligations.

A discretionary disclosure rule would permit a lawyer to consider the potential competing harms of disclosure when deciding whether to disclose. 2006 RPC 1.6(b)(1)’s mandatory rule provides no such options. Washington lawyers perhaps would benefit from the inclusion of a safety-valve exception to presumptive disclosure in cases of competing harms, or at least from some ethical guidance in the RPC itself or an explanatory Comment clarifying whether lawyers still must disclose even when a competing harm that is “reasonably certain” to result from disclosure equals or outweighs the harm of non-disclosure.

In mandating disclosure, 2006 RPC 1.6(b)(1) does not balance confidentiality interests against law enforcement interests. Rather, RPC 1.6(b)(1) balances confidentiality interests against the public interest in individual safety.[154] RPC 1.6(b)(1) thus mandates disclosure—and RPC 1.6 as a whole permits disclosure—only to the extent reasonably necessary to prevent the threatened harm, not to ensure prosecution of the client. 2006 RPC 1.6 Comment 23 emphasizes this point by directing “lawyer[s to] make every effort practicable to . . . limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of avoidable disclosure.”[155] Comment 14 adds: “Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.”[156]

A lawyer therefore need not disclose a client’s threat directly to law enforcement if disclosure to another source will avert the harm.[157] Indeed, when a lawyer is presented with a reasonably certain threat of harm, nothing under 2006 RPC 1.6(b)(1) prevents the lawyer from thinking creatively about how to protect client confidentiality while preventing the threatened harm, so long as that creative balance prioritizes harm prevention.[158] As another mandatory disclosure jurisdiction has opined: “[T]he nature and extent of such disclosure is a matter for the attorney’s judgment and discretion. . . . A reasonable decision and action by an attorney in such a difficult situation should not be the subject of disciplinary action.”[159] The structure and content of 2006 RPC 1.6(b)(1) suggest that Washington lawyers will be expected to exercise comparable judgment and discretion.

c. Will otherwise privileged information disclosed under 2006 RPC 1.6(b)(1)

remain privileged?

2006 RPC 1.6(b)(1)’s duty to disclose creates the very real prospect of lawyers becoming not only mandated reporters against their own clients, but witnesses too. Consider, for example, a domestic violence case where the client tells his lawyer, “I’m going to kill my wife tomorrow when she comes home from work.” The lawyer reports the threat under 2006 RPC 1.6(b)(1), and when the defendant appears at the wife’s residence the next day, the police are present, search him, and find a loaded gun. In a subsequent prosecution, the lawyer’s testimony to client intent proves critical and the prosecutor subpoenas the lawyer to testify before the grand jury or at trial. A mandatory disclosure rule raises serious questions of whether this lawyer properly may refuse to testify on the ground of attorney-client privilege when the lawyer already has revealed the client’s communications as required by law.

The attorney-client evidentiary privilege shields many communications between a lawyer and a client from testimonial production.[160] Yet, while the attorney-client privilege promotes policy interests similar to the duty of confidentiality,[161] not all confidential information is covered by the attorney-client privilege. The privilege only protects confidential communications between client and lawyer made “for the purpose of obtaining or providing legal assistance for the client,”[162] whereas the duty of confidentiality prohibits lawyers from disclosing any “information relating to the representation of a client.”[163] For example, if a lawyer obtains a client’s work history from the client’s employer for purposes related to the representation, that information is “confidential” under 2006 RPC 1.6, since it constitutes “information relating to the representation of a client.” Such information obtained from the client’s employer is not privileged. The lawyer thus may not disclose the client’s work history without client consent, but the lawyer could not refuse to testify to that information.[164]

In many cases, however, the confidential information that 2006 RPC 1.6(b)(1) requires a lawyer to disclose will implicate the attorney-client privilege, because the information will reveal direct communications with the client, such as in the domestic violence hypothetical that opened this section. Whether the lawyer will have to testify against a client whose threat he or she has disclosed often will turn on whether the client’s threat brings the client’s communication into the “crime-fraud” exception to the attorney-client privilege.

The crime-fraud exception exempts from the attorney-client privilege client statements of an intent to commit a future crime or fraud.[165] “[T]he purpose of the crime-fraud exception to the attorney-client privilege [is] to assure that the ‘seal of secrecy’ between lawyer and client does not extend to communications ‘made for the purpose of getting advice for the commission of a fraud’ or crime.”[166] The exception generally focuses on a nexus between a client’s criminal purpose and the challenged attorney-client communication:

A party seeking to vitiate the attorney-client privilege under the crime-fraud exception must satisfy a two-part test. First, the party must show that “the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme” . . . Second, it must demonstrate that the attorney-client communications for which production is sought are “sufficiently related to” and were made “in furtherance of [the] intended, or present, continuing illegality.”[167]

The Washington Supreme Court has applied the crime-fraud exception broadly, in a manner that suggests most if not all client communications disclosed under 2006 RPC 1.6(b)(1) will fall outside of the attorney-client privilege.[168] In State v. Hansen, Hansen consulted a lawyer about bringing a civil claim against a judge who presided over his criminal trial.[169] The lawyer reported a threat that Hansen made during this conversation to harm the judge as well as the prosecutor and defense counsel in his case.[170] The lawyer testified to this threat at Hansen’s trial, and Hansen was convicted of intimidating the judge.[171] On appeal, the Washington Supreme Court held that even if an attorney-client relationship existed between the lawyer and Hansen, the privilege did not attach to Hansen’s threat:

The attorney-client privilege is not applicable to a client’s remarks concerning the furtherance of a crime, fraud, or to conversations regarding the contemplation of a future crime. . . . Hansen’s statement that he was going to blow away the judge, prosecutor and public defender falls under this exception to the attorney-client privilege.[172]

Hansen therefore appears to extend the crime-fraud exception to circumstances where a client blurts out a criminal threat during an otherwise proper attorney-client consultation, and where the client had no purpose to obtain assistance or advice to further that threat.[173]

Case law from other jurisdictions, by contrast, holds that a client threat to commit a crime or fraud in similar circumstances will remain privileged, even if the lawyer has disclosed the threat under a confidentiality exception.[174] For example, in Purcell v. District Attorney for the Suffolk District, the Supreme Judicial Court of Massachusetts quashed a subpoena that sought a civil lawyer’s testimony at a criminal trial of the lawyer’s prior client after the lawyer had reported a threat by the client to burn down his apartment building.[175] The court, invoking policy concerns about deterring lawyers from reporting client threats of violence for fear of becoming witnesses against them, held:

A statement of an intention to commit a crime made in the course of seeking legal advice is protected by the privilege, unless the crime-fraud exception applies. That exception applies only if the client or prospective client seeks advice or assistance in furtherance of criminal conduct. . . .

. . . Unless the crime-fraud exception applies, the attorney-client privilege should apply to communications concerning possible future, as well as past, criminal conduct, because an informed lawyer may be able to dissuade the client from improper future conduct and, if not, under the ethical rules may elect in the public interest to make a limited disclosure of the client’s threatened conduct.[176]

Purcell does not represent an outlier decision. In Newman v. State, the Maryland Court of Appeals similarly rejected application of the crime-fraud exception to a client threat that a lawyer reported under a confidentiality exception.[177] Noting the numerous courts reaching similar conclusions, the court held:

We . . . join our colleagues on both the federal and state levels who have required more than a mere statement of the intent to commit a crime or fraud to trigger the crime-fraud exception . . . . To permit the mere statement of intent to defeat the attorney-client privilege would result in the exception swallowing the privilege.[178]

Perhaps in light of the newly-minted mandatory disclosure duty in 2006 RPC 1.6(b(1), the Washington Supreme Court will clarify or limit Hansen to bring Washington’s crime-fraud exception into line with the apparent majority of jurisdictions. But either way, by eliminating any attorney discretion about whether to disclose a reasonably certain threat of serious harm, 2006 RPC 1.6(b)(1) precludes attorneys from weighing the professional consequences of becoming a witness against a client when determining whether to disclose confidential information, even when it is also subject to the attorney-client privilege.[179]

d. Will lawyers who fail to report a client’s threat become liable in tort to

victims of client violence?

The question of lawyer liability in tort to foreseeable victims of client violence was discussed during the debate by the WSBA Ethics 2003 Committee on 2006 RPC 1.6(b)(1). Some Committee members expressed concern that a mandatory disclosure rule could result in civil liability against lawyers in an area where the law previously had not clearly established such liability, and where such liability, (or lawyer fear of it), may not serve the public interest.[180]

Under the common law, “a person has no duty to prevent a third person from causing physical injury to another.”[181] Washington courts, however, have embraced a general exception to this rule when “a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct.”[182] When a person who stands in such a “special relationship” to an actor “presents a reasonably foreseeable risk of serious harm to others, the [actor] has ‘a duty to take reasonable precautions to protect anyone who might foreseeably be endangered.’”[183]

The 2006 RPC do not address whether the duty to disclose under 2006 RPC 1.6(b)(1) creates an actionable duty of care to foreseeable victims of client violence. The preamble to the 2006 Rules provides:

Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. . . . Nevertheless, since the rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.[184]

In other jurisdictions that have adopted a similar mandatory disclosure duty, no clear rule has developed of whether this type of disclosure duty creates an actionable duty of care to third parties.[185] But the potential for lawyer liability to foreseeable victims harmed by violent clients has been explored in these jurisdictions[186] and some observers have advocated for such liability.[187] Washington lawyers should not discount the possibility.

In Hawkins v. King County, decided long before the 2006 RPC amendments, a Washington Court of Appeals noted “common law support for the precept that attorneys must, upon learning that a client plans an assault or other violent crime, warn foreseeable victims,”[188] particularly if “it appears beyond a reasonable doubt that the client has formed a firm intention to inflict serious personal injuries on an unknowing third person.”[189] Although Hawkins has not established a firm common law duty for Washington lawyers to protect foreseeable victims of client violence, Hawkins has proven quite influential in legal discourse on the subject.[190]

2006 RPC 1.6(b)(1)’s mandatory disclosure duty may add new ethical weight to this common law authority supporting lawyer liability in tort for a failing to protect foreseeable victims of client violence.[191] The policy statement underlying RPC 1.6(1)(b) is quite clear: lawyers’ duties to clients and the adversarial system must yield in the face of credible threats of violence to foreseeable persons.[192] Tort law may follow in turn.

V. Rule 3.3: Candor

RPC 3.3 establishes lawyer duties of candor to tribunals.[193] These rules operate in conjunction, but sometimes in conflict, with RPC 1.6’s principles of confidentiality, since RPC 3.3 often targets information relating to the representation of a client for disclosure or other action by the lawyer to ensure that the integrity of the judicial process is not undermined.[194]

2006 RPC 3.3 looks quite similar to Model Rule 3.3, but contains some important nuances. Model Rule 3.3 is perhaps most notable for its imposition of a mandatory disclosure duty—a duty that overrides Model Rule 1.6 confidentiality[195]—when disclosure is necessary to remedy the past presentation of false evidence to a tribunal.[196] 2006 RPC 3.3(c) contains a similar rule,[197] but the RPC version does not override RPC 1.6 confidentiality. On the contrary, 2006 RPC 3.3(c) provides that a lawyer must disclose that he or she has learned of the falsity of material evidence “unless such disclosure is prohibited under Rule 1.6.”[198]

This distinction between Model Rule 3.3 and 2006 RPC 3.3 largely may be obviated, however, by the broader “any crime” disclosure authorized by 2006 RPC 1.6(b)(2). When disclosure is permitted by 2006 RPC 1.6, RPC 3.3(c) makes discretionary disclosure mandatory when necessary to correct a court record—and perjury, of course, is a crime.[199] Even if 2006 RPC 1.6 does prohibit disclosure, RPC 3.3(d) requires the lawyer promptly to “make reasonable efforts to convince the client to consent to disclosure.”[200] If the client refuses to consent, “the lawyer may seek to withdraw from the representation in accordance with Rule 1.16.”[201]

2006 RPC 3.3(a)(2) similarly requires disclosure to a tribunal when necessary to avoid assisting in a criminal or fraudulent act by the client, “unless such disclosure is prohibited by Rule 1.6.”[202] Similar to Model Rule 3.3(b), 2006 RPC 3.3(a)(2) appears to be directed at preserving the integrity of the adjudicative process beyond the presentation of evidence, “such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so.”[203] This provision also may include circumstances where a lawyer believes that a client intends to perjure him or herself, but has not testified yet.[204]

2006 RPC 3.3(a)(1) adopts the complete language of Model Rule 3.3(a)(1),[205] so that now not only must lawyers not knowingly make a false statement of fact or law to a tribunal, but lawyers also must correct their past false statements of material fact or law. Lawyers periodically learn that information they previously have provided to a court in good faith was inaccurate or incorrect. Under 2006 RPC 3.3(a)(1), lawyers in such circumstances must correct the record before that tribunal if the incorrect statement of fact was “material” to the proceeding.[206] Notably, 2006 RPC 3.3(a)(1) does not expressly subordinate a lawyer’s duty to correct these past false statements to RPC 1.6 confidentiality.[207]

An not uncommon predicament may arise under this provision when a lawyer in good faith asserts a fact that the lawyer later learns was inaccurate, but the lawyer offered the fact on “information and belief,” or with some other recognized caveat signaling that the information remained unverified when it was offered.[208] Lawyers often condition their representations in this manner to protect themselves against misrepresentation claims for unverified factual assertions that later prove inaccurate. Depending on local practice norms, judges may be understood to take factual assertions offered on “information and belief” with the implicit warning of “buyer beware.” Yet, in many cases, lawyers do offer this information with the expectation that it will influence a judge’s decision, and ethical lawyers do not offer facts on “information and belief” when they have any reasonable basis to doubt the assertion. 2006 RPC 3.3(a)(1) does not render this practice unethical, but may require lawyers to return to the tribunal and correct the record even when material facts offered on “information and belief” are discovered to be inaccurate.[209]

Two counter-arguments perhaps could be made to mandated correction of lawyer statements offered on “information and belief.”[210] First, a lawyer could argue that an unverified factual assertion explicitly offered on “information and belief” carries the understood warning to the court of “potentially untrue.” Thus, the argument goes, even when the lawyer learns of the falsity of the underlying factual assertion, the lawyer in essence still has not offered a “false” statement of fact to the court because the lawyer never offered the fact as “true.” This hardcore “buyer beware” argument against a disclosure duty would seem, at a minimum, to cross into the overly-aggressive “zeal in advocacy” model that the 2006 RPC reject.[211] This argument also contravenes the clear message of 2006 RPC 3.3: with very limited exception, a lawyer should not knowingly permit a court to operate under demonstrably false factual information, particularly false information that the lawyer personally provided to the court.[212]

Another argument against disclosure may be more likely to pass the ethical scowl test. Under this argument, when a lawyer conditions a factual assertion on “information and belief,” the lawyer has not personally offered a statement of fact to the court, but rather represented to the court that some other source has asserted the fact, a fact that remains personally unverified by the lawyer. Thus, the argument continues, the lawyer must disclose the subsequently learned falsity of the asserted fact only under 2006 RPC 3.3(c), not 2006 RPC 3.3(a)(1), and 2006 RPC 3.3(c) is limited by RPC 1.6 confidentiality.

This argument may have some analytical merit to it. But, until Washington courts make lawyers’ full responsibility under 2006 RPC 3.3(a)(1) clear, a lawyer should beware of leaving a false factual assertion to a court uncorrected when that assertion came out of the lawyer’s own mouth.[213] Given that lawyers frequently will not have personal knowledge of facts they personally assert to a court,[214] a lawyer’s expressed lack of personal knowledge may not transform the lawyer’s personally-made assertion of that fact into “evidence” that the lawyer has offered, rather than a “statement of fact” subject to 2006 RPC 3.3(a)(1). Courts understandably expect greater candor from the lawyers who appear before them, and 2006 RPC 3.3(a)(1) may represent an effort to codify that level of expectation.

Under 2006 RPC 3.3(a)(4), a lawyer is prohibited from offering false evidence, but only if the lawyer knows that the evidence is false.[215] A lawyer’s reasonable belief that evidence is false does not preclude its presentation to a tribunal. Although this knowledge standard in 2006 RPC 3.3(a)(4) was contained in 1985 RPC 3.3(a)(4), Washington courts in practice may not have restricted the presentation of false evidence to a pure knowledge standard. In State v. Berrysmith, for instance, the Court of Appeals upheld a lawyer’s in camera report to the trial court of a client’s potential perjury based solely upon the lawyer’s “reasonable belief” that the client intended to perjure himself.[216] The court observed that defense counsel was “prohibited by [1985] RPC 3.3 in conjunction with RPC 1.6 from offering evidence that he reasonably believed to be false.”[217]

A reasonable belief in the falsity of testimony, however, does authorize a lawyer to refuse to offer the evidence.[218] Interestingly, unlike Model Rule 3.3(a)(3), 2006 RPC 3.3(e) does not exempt “a defendant in a criminal matter” from a lawyer’s option to refuse to present evidence reasonably believed to be false.[219] A lawyer who prevents a criminal defendant from testifying altogether, however, based solely upon the lawyer’s reasonable belief that the testimony is false, would create a serious constitutional problem since some courts have suggested that a criminal defendant’s constitutional right to testify cannot be denied altogether even when the lawyer knows that the defendant will testify falsely.[220] The United States Supreme Court has held only that a criminal defendant has no constitutional right to present false evidence or to the assistance of counsel in presenting false evidence, not that counsel may keep a perjurious defendant off the witness stand altogether.[221]

When a lawyer knows that a client intends to testify falsely, 2006 RPC 3.3 does not permit the lawyer to pursue the “narrative” approach to presenting the client’s false testimony.[222] If the lawyer cannot dissuade the client from testifying falsely, the lawyer “must refuse to offer the false evidence.”[223] The lawyer may call the witness to offer any truthful portions of his or her testimony, but the lawyer “may not elicit or otherwise permit the witness to present the testimony the lawyer knows is false.”[224]

VI. Conclusion

2006 amounted to a watershed year in Washington lawyer ethics, and several of the 2006 amendments to the RPC will impact daily, real-world legal practice. Among the many important new ethical rules to be learned, lawyers should pay special attention to the new ethical rules governing client confidentiality and candor to tribunals.

The ethical norms of confidentiality and candor have always defined much of good, ethical legal practice, and they are tied to some of the most critical new duties under the 2006 RPC. When these duties conflict, pitting lawyers’ loyalty to client against lawyers’ responsibilities as officers of the court and citizens, the 2006 RPC do not mandate zealous advocacy, but diligence in advocacy, where ardent representation is tempered by conscientious decision-making. Washington lawyers should study the 2006 RPC carefully so they can ensure that they strike this balance effectively for themselves, their clients, and the broader community.

——————————————————————————–

*. Assistant Professor of Law, Gonzaga University School of Law. J.D., magna cum laude, 1994, Boston University School of Law. Danial Gividen and Katherine Georger, law students at Gonzaga University School of Law, supplied outstanding research assistance. Katharine Tylee and other members of the Gonzaga Law Review also provided excellent feedback. Early drafts of this article were presented at CLE programs sponsored by the Washington State Office of Public Defense, the Washington State Defenders Association, and the Washington State Trial Lawyer’s Association. I am thankful to the many lawyers who supplied insightful comments and questions during these CLE programs. I am also thankful to Gonzaga University School of Law for its financial support of this research project. Unless noted otherwise, the anecdotal observations and hypotheticals presented in this article draw on the author’s experience as a public defender in New York City from 1994-2005, and current criminal appellate practice in the Ninth Circuit Court of Appeals.

[1]. See Douglas Ende, Supreme Court Adopts “Ethics 2003” Amendments to Rules of Professional Conduct, Wash. B. News, Sept. 2006, at 13, 13-17, available at http://wsba.org/media/publications/barnews/sept06-ende.htm.

[2]. See generally Wash. Rules of Prof’l Conduct (2006). Ultimately finalized and adopted by the Washington Supreme Court, the 2006 RPC amendments were drafted and recommended by the WSBA. The 2003 Ethics Committee initiated the revision process, which concluded with the approval of the Wash. Board of Governors. See Wash. Ct. GR § 12(a)(4), (a)(7), (b)(1), (b)(3), (b)(5) (2006) (establishing the authorized purposes and activities of the WSBA, including to “[f]oster and maintain high standards of competence, professionalism and ethics among its members,” to “[a]dminister . . . discipline of its members,” to “[p]rovide periodic reviews and recommendations concerning court rules,” to “[i]nform and advise lawyers regarding their ethical obligations,” and to “[s]ponsor and maintain committees, sections, and divisions whose activities further these purposes”). For the WSBA Ethics 2003 Committee Composition, see WSBA Ethics 2003 Committee Organization & Membership, http://wsba.org/lawyers/groups/ethics2003/ethics2003committeeroster.doc.

[3]. See Robert H. Aronson, An Overview of the Law of Professional Responsibility: The Rules of Professional Conduct Annotated and Analyzed, 61 Wash. L. Rev. 823, 825 (1986) (noting that the 1985 “RPC are virtually identical to the [1983] Model Rules”).

[4]. See generally E. Norman Veasey, Comm’n on Evaluation of Rules of Prof’l Conduct “Ethics 2000,” Chair’s Introduction to Model Rules of Prof’l Conduct (2002), available at http://www.abanet.org/cpr/mrpc/e2k_chair_intro.html.

[5]. See Letter from WSBA Ethics 2003 Comm. to Justice Charles W. Johnson (Sept. 2, 2005), http://wsba.org/lawyers/groups/ethics2003/ethics2003lettertojusticejohnson.pdf [hereinafter Letter to Justice Johnson] (noting that as of August 2005, “47 jurisdictions . . . have adopted a Model Rules-based system,” and “41 have adopted comments based in whole or in substantial part on the Model Rules comments”).

[6]. See Letter to Justice Johnson, supra note 5.

[7]. See WSBA Board of Governors, Suggested Amendments to the Rules of Prof’l Conduct, http://wsba.org/lawyers/groups/ethics2003/ethics2003gr9coversheet.doc; see also Letter to Justice Johnson, supra note 5.

[8]. See Letter to Justice Johnson, supra note 5; WSBA Board of Governors, supra note 7; see also WSBA-Special Comm. for the Evaluation of the Rules of Prof’l Conduct, http://wsba.org/lawyers/groups/ethics2003/default.htm (last visited Oct. 15, 2007).

[9]. See Letter to Justice Johnson, supra note 5.

[10]. See Wash. Rules of Prof’l Conduct pmbl., para. 23 (stating that “[t]he structure of these Rules generally parallels the structure of the American Bar Association’s Model Rules of Professional Conduct”). But cf. id. para. 22 (noting that “[n]othing in these Rules is intended to change existing Washington law on the use of the Rules of Professional Conduct in a civil action”).

[11]. See Ende, supra note 1.

[12]. See Letter to Justice Johnson, supra note 5; see also Letter from Douglas J. Ende to Ethics 2003 Committee (Aug. 11, 2005), http://wsba.org/lawyers/groups/ethics2003/ encl2reportersmemotocommittee.pdf (citing fifteen published Washington opinions that have expressly relied on Comments to the Model Rules or cited them with approval); cf. Aronson, supra note 3, at 827-28 (critiquing the 1985 RPC for not including explanatory comments).

[13]. Wash. Rules of Prof’l Conduct pmbl., para. 21; cf. Model Rules of Prof’l Conduct pmbl., para. 21 (2007) (using same language).

[14]. See Wash. Rules of Prof’l Conduct pmbl., para. 23.

[15]. Id. Unfortunately, the “Washington Revisions” to Model Rule Comments do not contain uniform explanations of those revisions, and the meaning or purpose of them is not always self-evident. See, e.g., Wash. Rules of Prof’l Conduct 1.3 cmt. 1 (changing term “zealous” to “diligent” without explanation).

[16]. Wash. Rules of Prof’l Conduct pmbl., para. 23.

[17]. Id. Why the drafters chose the term “reserved” instead of “deleted” is not explained in the RPC.

[18]. WSBA Board of Governors, supra note 7.

[19]. Id.

[20]. Wash. Rules of Prof’l Conduct R. 8.3.

[21]. Model Rules of Prof’l Conduct R. 8.3(a) (2007).

[22]. Id. R. 8.3(b).

[23]. Id. R. 8.3(a)–(b).

[24]. Wash. Rules of Prof’l Conduct R. 8.3(a); Model Rules of Prof’l Conduct R. 8.3(a).

[25]. See Ende, supra note 1.

[26]. Cf. Wash. Rules of Prof’l Conduct pmbl., para. 14; Model Rules of Prof’l Conduct pmbl., para. 14 (highlighting, respectively, that use of “shall” represents an ethical “imperative[],” whereas “[m]any of the Comments use the term ‘should,’” which does “not add obligations to the Rules but provides guidance for practicing in compliance with the Rules”).

[27]. See Wash. Rules of Prof’l Conduct R. 8.3(c) (providing that “[t]his Rule does not permit a lawyer to report the professional misconduct of another lawyer or a judge to the appropriate authority if doing so would require the lawyer to disclose information otherwise protected by Rule 1.6”) (emphasis added).

[28]. See Model Rules of Prof’l Conduct R. 8.3(c) (providing that “[t]his Rule does not require disclosure of information otherwise protected by Rule 1.6.”) (emphasis added). The WSBA had recommended that Model Rule 8.3’s mandatory provision be adopted in Washington, and thus, 2006 RPC 8.3 represents a prominent example of the Washington Supreme Court rejecting a rule proposed by the WSBA. See also Ende, supra note 1, at 15 (noting that even “[t]hough the Board of Governors had recommended adoption of the Model Rule, . . . the [Washington] Supreme Court opted to retain Washington’s longstanding approach, which encourages but does not require such reporting”).

[29]. See generally Thomas Andrews, Washington Rules of Professional Conduct as Adopted by the State Supreme Court (2006), http://wsba.org/lawyers/groups/ethics2003/wprcfinalrules.pdf (detailing, in a 211-page report, the comparison of the 2006 RPC with the Model Rules).

[30]. Wash. Rules of Prof’l Conduct R. 1.6, R. 3.3.

[31]. Id. R. 1.3.

[32]. Id.

[33]. Model Rules of Prof’l Conduct R. 1.3.

[34]. Compare Wash. Rules of Prof’l Conduct R. 1.3 cmt. 1, with Model Rules of Prof’l Conduct R. 1.3 cmt. 1. See also WSBA­­–Ethics 2003 Comm. Rules as Proposed to the Wash. Supreme Court, Rule 1.3 Comments, http://www.wsba.org/lawyers/groups/ethics2003/1.3_comment.htm (last visited Oct. 20, 2007) (retaining the full Model Rule text in Comment 1 proposed by the WSBA, including the “zeal in advocacy” language).

[35]. See Wash. Rules of Prof’l Conduct R. 1.3, R. 1.3 cmt. 1.

[36]. Id. pmbl., para. 2 (providing that “[a]s a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer conscientiously and ardently asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.”).

[37]. Id. pmbl., para. 8 (providing that “[a] lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a conscientious and ardent advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.”).

[38]. Id. pmbl., para. 9 (providing that “[i]n the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation conscientiously and ardently to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”).

[39]. See WSBA Bd. of Governors, Board of Governors’ Revisions to Ethics 2003 Committee Recommendations (2004), http://wsba.org/lawyers/groups/ethics2003/ boardofgovernorsrevisionswithcomments.doc.

[40]. Id. at 5; see also Wash. Rules of Prof’l Conduct pmbl., para. 9.

[41]. WSBA Bd. of Governors, supra note 39, at 5.

[42]. See WSBA–Ethics 2003 Comm. Rules as Proposed to the Wash. Supreme Court, Rule 1.3 Comments, supra note 34.

[43]. American Heritage Dictionary, 72, 296 (3d College ed. 1993), defines “conscientious” as “[g]uided by or in accordance with the dictates of conscience,” and defines “ardent” as “[d]isplaying or characterized by strong enthusiasm or devotion; fervent.”

[44]. See WSBA Bd. of Governors, supra note 39, at 5.

[45]. Alexis Anderson, Lynn Barenberg & Paul R. Tremblay, Professional Ethics in Interdisciplinary Collaboratives: Zeal, Paternalism and Mandated Reporting, 13 Clinical L. Rev. 659, 668 (2007).

[46]. Id. (quoting Lord Brougham in Trial of Queen Caroline 8 (J. Nightingale ed. 1820-21)).

[47]. See Model Code of Prof’l Responsibility Canon 7 (1969); see also Anderson, Barenberg & Tremblay, supra note 45, at 669 (discussing different ethical codes that have expressly mandated lawyer zeal).

[48]. Anderson, Barenberg & Tremblay, supra note 45, at 668-69.

[49]. Douglas R. Richmond, The Ethics of Zealous Advocacy: Civility, Candor and Parlor Tricks, 34 Tex. Tech. L. Rev. 3, 3 & n.1 (2002) (citing a 2001 Wisconsin opinion, a 2000 Florida opinion, a 1999 Indiana opinion, and a 1997 Ohio opinion, all explicitly embracing the “zealous advocacy” model).

[50]. Josh O’Hara, Note, Creating Civility: Using Reference Group Theory to Improve Inter-Lawyer Relations, 31 Vt. L. Rev. 965, 968 (2007); cf. Kara Anne Nagorney, Note, A Noble Profession? A Discussion of Civility Among Lawyers, 12 Geo. J. Legal Ethics 815, 815 (1999) (noting that a “National Law Journal survey found that fifty percent of the attorneys questioned used the word obnoxious to describe their colleagues”).

[51]. Jack T. Camp, Thoughts on Professionalism in the Twenty-First Century, 81 Tul. L. Rev. 1377, 1379 (2007), quoting Gus A. Schill, Jr., Old Wine into New Bottles and Old Wine into New Bottles Revisited, 18 Hous. J. Int’l L. 817, 817-18 (1996).

[52]. O’Hara, supra note 50, at 968.

[53]. See Nagorney, supra note 50, at 815-16 (discussing studies revealing increasingly negative internal and public perceptions of the legal profession); Camp, supra note 51, at 1379 (arguing that a “pronounced trend toward questionable and uncivilized behavior among lawyers has developed over the past few years”); see also Susan Daicoff, Law as a Healing Profession: The ‘Comprehensive Law Movement’, 6 Pepp. Disp. Resol. L.J. 1, 4 (2006) (discussing the “the ‘tripartite crisis’ in the legal profession of deprofessionalism, low public opinion of lawyers, and lawyer distress”).

[54]. Richmond, supra note 49, at 4.

[55]. WSBA Bd. of Governors, supra note 39, at 5.

[56]. See generally Daicoff, supra note 53, at 1-4; see also Heather E. Williams, Social Justice and Comprehensive Law Practices: Three Washington State Examples, 5 Seattle J. Soc. Just. 411, 411-13 & nn.3-12 (2006) (describing the “comprehensive law” movement generally, and listing authorities).

[57]. See generally International Network on Therapeutic Jurisprudence, http://www.law.arizona.edu/depts/upr-intj/intj-welcome.html (last visited Oct. 24, 2007).

[58]. David B. Wexler, Therapeutic Jurisprudence: An Overview, 17 T.M. Cooley L. Rev. 125, 125 (2000).

[59]. See Daicoff, supra note 53, at 11.

[60]. See David B. Wexler & Bruce J. Winick, Putting Therapeutic Jurisprudence to Work, A.B.A. J., May 2003, at 54, 56-57.

[61]. Susan L. Brooks, Using Therapeutic Jurisprudence to Build Effective Relationships with Students, Clients and Communities, 13 Clinical L. Rev. 213, 216 (2006).

[62]. Daicoff, supra note 53, at 4.

[63]. Id. at 8.

[64]. See, e.g., Brooks, supra note 61 (outlining therapeutic jurisprudence in a clinical context).

[65]. Daicoff, supra note 53, at 11; cf. Brooks, supra note 61, at 216 (explaining that “therapeutic jurisprudence is merely an approach,” and thus “it does not favor a normative framework,” but rather “sets up a line of inquiry”).

[66]. See Diacoff, supra note 53, at 7-8 (explaining that “the comprehensive law movement seek[s] legal solutions that make things better, or at least not worse, for the people involved in the legal matter,” and “explicitly or implicitly attempt[s] to optimize the psychological and emotional wellbeing of the individuals involved”).

[67]. Id. at 7.

[68]. William Schma et al., Therapeutic Jurisprudence: Using the Law to Improve the Public’s Health, 33 J.L. Med. & Ethics 59, 59 (2005), available at http://www.allbusiness.com/legal/3587312-1.htm.

[69]. See, e.g., Robin Steinberg & David Feige, Cultural Revolution: Transforming the Public Defender’s Office, 29 N.Y.U. Rev. L. & Soc. Change 123, 125, 131 (2004) (advocating holistic advocacy as an institutional public defender model, and arguing that a holistic public defender office should foster the “true believers,” and come time for promotions and other advancement decisions, “it is important to choose the candidate who best supports the new cultural values of the office”).

[70]. See generally Brooks Holland, Holistic Advocacy: An Important but Limited Institutional Role, 30 N.Y.U. Rev. L. & Soc. Change 637 (2006); Tamar M. Meekins, “Specialized Justice”: The Over-Emergence of Specialty Courts and the Threat of a New Criminal Defense Paradigm, 40 Suffolk U. L. Rev. 1 (2006); Mae C. Quinn, An RSVP to Professor Wexler’s Warm Therapeutic Jurisprudence Invitation to the Criminal Defense Bar: Unable to Join You, Already (Somewhat Similarly) Engaged, 48 B.C. L. Rev. 539 (2007); see also Kyung M. Lee, Comment, Reinventing Gideon v. Wainwright: Holistic Defenders, Indigent Defendants, and the Right to Counsel, 31 Am. J. Crim. L. 367, 426-27 (2004) (recognizing the risk of paternalism inherent in holistic advocacy, although arguing that “paternalism is a good thing . . . when the professional is in fact ‘correct’”); see David B. Wexler, Not Such a Party Pooper: An Attempt to Accommodate (Many of) Professor Quinn’s Concerns about Therapeutic Jurisprudence Criminal Defense Lawyering, 48 B.C. L. Rev. 597 (2007) (responding to Professor Quinn’s piece).

[71]. The 2006 version of RPC 1.6 reads:

a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

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.

Wash. Rules of Prof’l Conduct R. 1.6 (2006).

[72]. Compare Wash. Rules of Prof’l Conduct R. 1.6 (1985), with Model Rules of Prof’l Conduct R. 1.6 (2007). Washington Rule 1.6 provides:

(a) A lawyer shall not reveal confidences or secrets relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in section (b);

(b) A lawyer may reveal such confidences or secrets to the extent the lawyer reasonably believes necessary:

(1) To prevent the client from committing a crime; or

(2) to establish a claim or defense on behalf of the lawyer . . . based upon conduct in which the client was involved, to respond to allegations in any proceeding concerning the lawyer’s representation of the client, or pursuant to court order.

Model Rule 1.6 reads:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(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.

[73]. Daniel R. Fischel, Lawyers and Confidentiality, 65 U. Chi. L. Rev. 1, 1 (1998), reprinted in George M. Cohen & Susan P. Koniak, Foundations of the Law and Ethics of Lawyering 147, 147 (2004).

[74]. Id. at 148 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)); see also Model Rules of Prof’l Conduct R. 1.6 cmt. 2 (2007) (explaining that confidentiality “contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter”); but cf. Fischel, supra note 73, at 148 (arguing that “this standard justification, although repeated endlessly, is empty. . . . [C]onfidentiality benefits lawyers because it increases the demand for legal services. The legal profession, not clients or society as a whole, is the primary beneficiary of confidentiality rules.”). See generally Fred C. Zacharias, Rethinking Confidentiality, 74 Iowa L. Rev. 351, 356-76 (1989) (exploring and analyzing the justifications for confidentiality duty).

[75]. See Fischel, supra note 73, at 154-55 (discussing evolution of confidentiality rules included under the different ABA Codes over the years, and observing that “[a]ttorneys’ obligations to keep information confidential . . . have been steadily expanding in scope in recent decades”).

[76]. Model Rules of Prof’l Conduct R. 1.6(a).

[77]. Wash. Rules of Prof’l Conduct R. 1.6(a) (1985).

[78]. Id. Terminology (defining “confidence”).

[79]. Id. (defining “secret”); see also In re Schafer, 66 P.3d 1036, 1040-41 (Wash. 2003).

[80]. Wash. Rules of Prof’l Conduct R. 1.6 cmt. 19 (2006).

[81]. See id. R. 1.6.

[82]. See id. R. 1.6 cmt. 24 (notably omitting a Model Rule, 2006 RPC 1.6 does not include the confidentiality exception in Model Rule 1.6(b)(6), which permits disclosure of confidential information to comply with “other law.” The authorized disclosure of confidential information without express or implied client consent, therefore, would appear limited solely to the circumstances provided by the Washington RPC); id. R. 1.2(d), R. 3.3, R. 4.1(b), R. 8.1 (requiring disclosure if not prohibited by RPC 1.6. Lawyers should note that disclosure of confidential information is authorized by RPC provisions outside of RPC 1.6.); id. R. 1.13(c) (permitting disclosure even if not authorized under RPC 1.6). See generally WSBA Ethics 2003 Committee, Confidentiality Subcommittee Final Report app. O at 3-5, http://www.wsba.org/lawyers/groups/ethics2003/appendixd.doc (listing twenty reasons for Committee’s rejection of Model Rule 1.6(b)(6)’s “other law” confidentiality exception).

[83]. Model Rules of Prof’l Conduct R. 1.6(b) (2007).

[84]. Wash. Rules of Prof’l Conduct R. 1.6(b)(1) (1985).

[85]. In a notable omission of a Model Rule, 2006 RPC 1.6 does not include the confidentiality exception in Model Rule 1.6(b)(6), which permits disclosure of confidential information to comply with “other law.” Under the 2006 RPC, therefore, disclosure is permitted solely under the circumstances recognized by RPC themselves. The disclosure of confidential information, however, is authorized by RPC provisions outside of RPC 1.6. See Wash. Rules of Prof’l Conduct R. 1.2(d), R. 3.3, R. 4.1(b), R. 8.1 (all requiring disclosure if not prohibited by RPC 1.6); id. R. 1.13(c) (permitting disclosure even if not authorized under RPC 1.6). See generally WSBA Ethics 2003 Committee, Confidentiality Subcommittee Final Report app. O at 3-5, http://www.wsba.org/lawyers/groups/ethics2003/appendixd.doc (listing twenty reasons for Committee’s rejection of Model Rule 1.6(b)(6)’s “other law” confidentiality exception).

[86]. See WSBA Ethics 2003 Committee, supra note 82, at 1-2 (unanimously recommending that this provision be retained, noting a 13-0 vote).

[87]. See Wash. Rules of Prof’l Conduct R. 1.6 cmt. 20 (2006).

[88]. In contrast to Model Rule 1.6(b)(2), 2006 RPC 1.6(b)(2) does not permit disclosure to prevent a client fraud if the fraud does not amount to a crime. Cf. Model Rule 1.0(d) and 2006 RPC 1.0(d) (defining “fraud” and “fraudulent” respectively); cf. Aronson, supra note 3, at 832, 845-46 (criticizing failure of the 1985 RPC to permit lawyers to reveal a “client’s intent to defraud another or fraud in furtherance of which the lawyer’s services had been used,” and noting that such disclosure was authorized under the pre-1985 code). The WSBA Ethics 2003 Committee and the Board of Governors had proposed adoption of Model Rule 1.6(b)(2) as RPC 1.6(b)(3), see WSBA Ethics 2003 Committee, Suggested Amendments to Rules of Prof’l Conduct 41, http://www.wsba.org/lawyers/groups/ethics2003/ethics2003suggestedrulesfinalspacedandformattedmarkup.doc); WSBA Ethics 2003 Committee, supra note 82, at 2, but this provision did not find its way into 2006 RPC 1.6.

[89]. See Wash. Rules of Prof’l Conduct R. 1.6 cmt. 15 (providing that “[a] lawyer’s decision not to disclose as permitted by paragraph (b) does not violate this Rule”).

[90]. Id. R. 1.6 cmt. 23 (quoting In re Boelter, 985 P.2d 328, 334 (Wash. 1999)).

[91]. Id. R. 1.6 cmt. 15.

[92]. See Thomas D. Morgan & Ronald D. Rotunda, Model Rules of Professional Conduct and Other Selected Standards on Professional Responsibility 148-55 (2007) (listing jurisdictions with “any crime” confidentiality exceptions). As of 2007, these states include: Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Kansas, Maine, Michigan, Mississippi, Minnesota, Nevada, New York, Nebraska, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia, and Wyoming. Of these states, Florida and Virginia require disclosure of confidential information to prevent “any crime.” Id. See generally Steven Gillers & Roy D. Simon, Regulation of Lawyers: Statutes and Standards 83-88 (2007) (listing states that have, instead of a broad “any crime” disclosure provision, adopted variations of Model Rule 1.6(b)(2), which limits this basis for disclosure of confidential information to substantial financial or property crimes and frauds in furtherance of which the client has used the lawyer’s services).

[93]. Wash. Rules of Prof’l Conduct R. 1.6 cmt. 6.

[94]. See, e.g., Ga. Rules of Prof’l Conduct R. 1.6(b)(2) (2006) (providing that harm-based “disclosure is permissible only if the harm or loss has not yet occurred”), available at http://www.gabar.org/handbook/part_iv_after_january_1_2001_-_georgia_rules_of_professional_conduct/rule_16_confidentiality_of_information/.

[95]. Model Rules of Prof’l Conduct R. 1.6(b)(3) (2007).

[96]. See id. R. 1.6 cmt. 7 (noting that when a client uses a lawyer’s services to commit a serious crime or fraud, “[s]uch a serious abuse of the lawyer-client relationship by the client forfeits the protection of this Rule”).

[97]. Strangely, 2006 RPC 1.6 has “reserved,” or deleted Model Rule Comment 8, the comment that explains this permissive disclosure provision and offers the important caveat that it “does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense.” Perhaps the Washington Supreme Court believed this caveat self-evident and therefore unnecessary. Or, perhaps the absence of Comment 8 reflects an oversight, as the Ethics 2003 Committee initially proposed deletion of Comment 8 to conform with its proposed rejection of Model Rule 1.6(b)(3), a recommendation the Washington Supreme Court ultimately rejected. See WSBA Ethics 2003 Committee, supra note 82, at 2.

[98]. See WSBA Ethics 2003 Committee, supra note 82, at 2.

[99]. Id.

[100]. Id.

[101]. See id.; Wash. Rules of Prof’l Conduct R. 4.1(b) (stating that “a lawyer shall not knowingly . . . fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6”).

[102]. See generally Gillers & Simon, supra note 92, at 84-88 (listing jurisdictions, as of 2007, including: Arizona, Arkansas, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Iowa, Indiana, Louisiana, Maryland, Massachusetts, Minnesota, Maine, Missouri, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, and Wisconsin).

[103]. See Wash. Rules of Prof’l Conduct R. 1.6 cmt. 14.

[104]. Id.

[105]. Id.

[106]. Id.

[107]. Id. R. 1.6 cmt. 23; see also id. R. 1.6 cmt. 14 (directing lawyers to limit disclosure through “appropriate protective orders or other arrangements . . . to the fullest extent practicable”).

[108]. Model Rules of Prof’l Conduct R. 1.6(b)(1) (2007).

[109]. See Morgan & Rotunda, supra note 92, at 148-55 (discussing and listing state rules).

[110]. See generally Bruce A. Green & Fred C. Zacharias, Permissive Rules of Professional Conduct, 91 Minn. L. Rev. 265 (2006); Amanda Vance & Randi Wallach, Updating Confidentiality: An Overview of the Recent Changes to Model Rule 1.6, 17 Geo. J. Legal Ethics 1003, 1007-14 (2003) (discussing the ABA Ethics 2000 Committee decision to permit but not require disclosure, and outlining the policy debate for and against no disclosure and mandatory disclosure options); David Lew, Note Revised Model Rule 1.6: What Effect Will the New Rule Have on Practicing Attorneys?, 18 Geo. J. Legal Ethics 881, 888-90 (2006) (analyzing the longer term normative role the changes to Rule 1.6 will have in socializing lawyers, balancing humanitarian values against self-interested adherence to client confidentiality); see also Model Rules of Prof’l Conduct R. 1.6 cmt. 15 (explaining that in deciding whether to disclose confidential information to prevent reasonably certain death or substantial bodily harm, “the lawyer may consider such factors as the nature of the lawyer’s relationship with the client and those who might be injured by the client, the lawyer’s own involvement in the transaction and factors that extenuate the conduct in question,” but making clear that “[a] lawyer’s decision not to disclose as permitted by paragraph (b) does not violate this Rule”).

[111]. Wash. Rules of Prof’l Conduct R. 1.6(b)(1) (emphasis added).

[112]. See generally Susan R. Martyn et al., The Law Governing Lawyers: National Rules, Standards, statutes, and State Lawyer Codes 112-19 (2007); Morgan & Rotunda, supra note 92, at 148-55; see also Anderson, Barenberg & Tremblay, supra note 45, at 695 & n.97; Gregory C. Sisk, Change and Continuity in Attorney-Client Confidentiality: The New Iowa Rules of Professional Conduct, 55 Drake L. Rev. 347, 399 & n.210 (2007).

[113]. Wash. Rules of Prof’l Conduct R. 1.6 cmt. 6.

[114]. See WSBA Ethics 2003 Committee, supra note 82, at 5-6.; WSBA Ethics 2003 Committee, Report and Recommendations of the Special Committee for Evaluation of the Rules of Professional Conduct app. E at 33-60, (2004), http://www.wsba.org/lawyers/groups/ethics2003/appendixe.doc.

[115]. See WSBA Ethics 2003 Committee, supra note 82, at 5-6.

[116]. See WSBA Ethics 2003 Committee, supra note 88, at 41-51.

[117]. See, e.g., Leslie C. Levin, Testing the Radical Experiment: A Study of Lawyer Response to Clients Who Intend to Harm Others, 47 Rutgers L. Rev. 81, 96-102, 107-42 (1994) (examining the theoretical justifications for both discretionary and mandatory disclosure schemes, and concluding after an empirical study of New Jersey lawyers that a mandatory rule does not appear to achieve its main objective of mitigating harm to others); Kevin E. Mohr, California’s Duty of Confidentiality: Is It Time for a Life-Threatening Criminal Act Exception?, 39 San Diego L. Rev. 307, 327-52 (2002) (examining California’s strict confidentiality requirement and advocating for a death or bodily harm exception, but as a discretionary rule rather than a mandatory rule); Harry I. Subin, The Lawyer as Superego: Disclosure of Client Confidences to Prevent Harm, 70 Iowa L. Rev. 1091, 1174-75 (1985) (advocating for a mandatory rule after analyzing the justifications for confidentiality, because a discretionary scheme would “invite the wolf to tend the flock”); Rachel Vogelstein, Confidentiality v. Care: Re-Evaluating the Duty to Self, Client, and Others, 92 Geo. L.J. 153, 154-73 (2003) (arguing that confidentiality rules should reflect an “ethic of care,” and thus Model Rule 1.6 should require disclosure to prevent serious harm); see also WSBA Ethics 2003 Committee, Report and Recommendation of the Special Committee for Evaluation of the Rules of Professional Conduct, supra note 114, at 33-60 (presenting many of the arguments for and against a mandatory “death or substantial bodily harm” disclosure rule by members of the WSBA Ethics 2003 Committee).

[118]. See Wash. Rules of Prof’l Conduct R. 1.6 cmt. 6 (explaining that this exception “recognizes the overriding value of life and physical integrity”); see also State Bar of Ariz. Ethics Comm., Formal Op. 91-18, at 2-6 (1991). Cf. generally Richard Pliskin, The Ethics of Suicide, 137 N.J. L.J. 749 (1994).

[119]. The WSBA Disciplinary Board, for example, “is a 14 member board of 10 lawyers and 4 nonlawyers.” WSBA–Disciplinary Board, http://www.wsba.org/lawyers/groups/ dboard/default1.htm (last visited Oct. 17, 2007).

[120]. This point is illustrated by the WSBA Ethics 2003 Committee’s recommendation that the Washington Supreme Court reject a mandatory disclosure duty in favor of retaining greater lawyer discretion to maintain client confidentiality. See supra note 88.

[121]. Cf. State Bar of Ariz. Ethics Comm., supra note 118, at 7 (acknowledging that “it is very difficult for a lawyer ever to know that a client actually will carry out an expressed threat”). But cf. Sarah Buel & Margaret Drew, Do Ask and Do Tell: Rethinking the Lawyer’s Duty to Warn in Domestic Violence Cases, 75 U. Cin. L. Rev. 447, 464 (2006) (arguing that “[l]awyers are competent to assess risk presented by their clients”).

[122]. See Davalene Cooper, The Ethical Rules Lack Ethics: Tort Liability When a Lawyer Fails to Warn a Third Party of a Client’s Threat to Cause Serious Physical Harm or Death, 36 Idaho L. Rev. 479, 483-85 (2000) (observing that even in jurisdictions with a mandatory disclosure rule, lawyers do not face disciplinary sanctions for failing to report). In an anecdotal example, one of my research assistants called the “ethical hotline” in Florida, a mandatory disclosure jurisdiction since 1992. See Fla. Rules of Prof’l Conduct R. 4-1.6(b)(2) (1992). See generally The Fla. Bar Re: Amendment to Rules Regulating the Fla. Bar, 605 So. 2d 252 (Fla. 1992). My research assistant asked the hotline staff person whether any record existed of a lawyer being sanctioned for failing to disclose confidential information necessary to prevent a threat of serious harm, and the staff person responded that she had no knowledge of a lawyer being sanctioned for that reason.

[123]. Cf. Cooper, supra note 122, at 483-85 (noting that non-enforcement of mandatory disclosure duties has deprived them of substantive effect); Levin, supra note 117, at 128-31 (concluding from a survey of 1,950 New Jersey lawyers that nine years after New Jersey adopted a mandatory disclosure duty in 1985, “many lawyers were not disclosing client confidences to prevent wrongful acts, even when disclosure was necessary to prevent substantial harm to others . . . only about half of those lawyers who were required to disclose . . . to prevent death or substantial bodily harm had in fact made disclosure,” and that “[v]irtually all of the lawyers who disclosed client information . . . indicated that they would have disclosed even if disclosure were optional”); Zacharias, supra note 74, at 379, 391-96 (studying 63 lawyers in Thompkins County, New York, and finding that a substantial number did not follow disclosure rules).

[124]. Cf. Lew, supra note 110, at 888-90, 892 (emphasizing the importance of education for both law students and practicing lawyers in achieving the objectives of a disclosure duty).

[125]. Cf. Levin, supra note 117, at 149 (observing that a mandatory disclosure duty may encourage lawyers not to disclose); Zacharias, supra note 74, at 376-97 (questioning efficacy of confidentiality rules on an empirical basis); Joshua James Sears, Comment, Blood on Our Hands: The Failure of Rule 1.6 to Protect Third Parties from Violent Clients, and the Movement toward a Common-Law Solution, 39 Idaho L. Rev. 451, 462-65 (2003) (arguing that disclosure rules actually may serve as a deterrent to attorney disclosure).

[126]. See Wikipedia.com, Three Wise Monkeys, http://en.wikipedia.org/wiki/Three_wise_monkeys (last visited Oct. 18, 2007) (explaining that the three-monkey pictorial maxim “embod[ies] the proverbial principle to ‘see no evil, hear no evil, speak no evil,’” which “[t]oday . . . is commonly used to describe someone who doesn’t want to be involved in a situation, or someone turning a willful blind eye to the immorality of an act he is involved in”).

[127]. Cf. Levine, supra note 117, at 149 (observing that a mandatory disclosure duty actually may undermine the functional utility of the rule by encouraging lawyers not to disclose to preserve their relationships with clients). The corresponding rule in Virginia suggests that the judiciary is cognizant of this reality. See Va. Rules of Prof’l Conduct R. 1.6(c)(1) (2000). This rule attempts to address the issue by broadly mandating disclosure of a client’s intent to commit “a crime,” but provides that “before revealing such information, the attorney shall, where feasible … 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.” Id. By comparison, the Washington rule recommends that, “[w]here practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure.” Wash. Rules of Prof’l Conduct R. 1.6 cmt. 14 (2006). The obligation to disclose under RPC 1.6 if this conversation goes south may motivate many lawyers to deem this effort “impracticable.”

[128]. But cf. Lew, supra note 110, at 887 (arguing that a discretionary disclosure duty will suppress the disclosure rate more than a mandatory duty).

[129]. Cf. Levin, supra note 117, at 140-42 (noting the instinct of lawyers to use their negotiation skills to dissuade clients from engaging in illicit activity).

[130]. Cf. id. at 129-30 (finding that lawyers disclose threats of death or substantial bodily harm at a much higher rate than client financial harms); Zacharias, supra note 74, at 392 (finding that lawyers presented with hypotheticals are more likely to report physical harm than financial harm); Lew, supra note 110, at 890-92 (analyzing the Levin and Zacharias studies and concluding that lawyer ethics will produce higher disclosure rates with threats of serious physical harm than threats of financial harm). These two harm-reduction benefits would more likely be realized because of the enhanced range of harm-reduction education that openly could be delivered to lawyers under a discretionary disclosure rule. Cf. id. at 892 (arguing that to effectively achieve a harm-reduction objective, the legal community “must approach this problem from different angles,” including ongoing lawyer education).

[131]. Lawyers also will need to resolve for themselves how they will communicate this disclosure duty to clients and structure a professional relationship around it. Precise answers to these questions are in no way dictated by the 2006 RPC. Cf. Wash. Rules of Prof’l Conduct R. 1.4 (broadly outlining lawyer obligations to communicate with clients). These answers in practice will vary widely from lawyer to lawyer and from client to client. Some lawyers may decide to advise all new clients of the mandatory duty; other lawyers may advise clients of the duty only when the lawyer perceives he or she may be subject to it; and other lawyers may choose a variety of approaches that will depend on the unique case or the client. Ultimately, however, these highly individualized practice choices should incorporate many, if not all, of the questions to be addressed in the following sections.

[132]. Id. R. 1.6(b)(1).

[133]. See Fla. Rules of Prof’l Conduct R. 4-1.6(b)(2) (1992); N.D. Rules of Prof’l Conduct 1.6(b) (2006); Tenn. Rules of Prof’l Conduct R. 8-1.6 (2002).

[134]. Wash. Rules of Prof’l Conduct R. 1.6(b)(1).

[135]. Id. R. 1.6 cmt. 6 (emphasis added).

[136]. See Vt. Rules of Prof’l Conduct R. 1.6(b) (2006) (limiting disclosure duty to cases of “imminent death or substantial bodily harm”); Iowa Rules of Prof’l Conduct R. 32:1.6(b)-(c) (2005) (permitting disclosure in cases on non-imminent harm, but mandating disclosure “to the extent the lawyer reasonably believes necessary to prevent imminent death of substantial bodily harm”); N.M. Rules of Prof’l Conduct R. 16-106(B) (2000) (limiting discretionary disclosure duty to cases of “imminent death or substantial bodily harm”).

[137]. Wash. Rules of Prof’l Conduct R. 1.6 cmt. 6.

[138]. Id.

[139]. See Ariz. Rules of Prof’l Conduct R. 1.6(b) (2007); Conn. Rules of Prof’l Conduct R. 1.6(b) (2007); Wis. Rules of Prof’l Conduct R. for Attorneys 20:1.6(b) (2007); Nev. Rules of Prof’l Conduct R. 1.6(b)(2)-(3) (2006); Vt. Rules of Prof’l Conduct R. 1.6(b)(1) (2006); Iowa Rules of Prof’l Conduct R. 32:1.6(b)(2)-(3) (2005); N.J. Rules of Prof’l Conduct R. 1.6(b)(1)-(2) (1998); Tex. Disciplinary Rules of Prof’l Conduct R. 1.05(e) (1995); see also, e.g., Va. Rules of Prof’l Conduct R. 1.6(c)(1) (2007) (mandating disclosure of a client’s intent to commit “a crime”); State Bar of Ariz. Ethics Comm., supra note 118, at 2-6 (evaluating inquiry under Arizona’s mandatory disclosure duty of whether a lawyer must reveal a client’s stated intention to commit suicide, and concluding that while “suicide clearly is an act involving ‘death or substantial bodily harm,’” Arizona law did not make clear whether suicide constituted a crime, and thus “a strict literal reading of the confidentiality rule and its exceptions would lead us to conclude that the attorney could not, under any circumstances, reveal his client’s intention to commit suicide”); see also Pliskin, supra note 118 (exploring a lawyer’s decision not to reveal client’s intent to commit suicide because, to the lawyer’s best knowledge, which included a hypothetical consultation with a prosecutor, suicide did not constitute a crime in New Jersey).

[140]. Wash. Rules of Prof’l Conduct R. 1.6(b)(2)-(7).

[141]. Cf. Buel & Drew, supra note 121, at 465 (noting that “[i]nformation of client threat may be received in a variety of forms”).

[142]. Dana Harrington Conner, To Protect or to Serve: Confidentiality, Client Protection, and Domestic Violence, 79 Temp. L. Rev. 877, 915 (2006) (analyzing circumstance where a lawyer representing a domestic violence victim is obligated to disclose confidential information to reveal a threat of harm against the victim); Cf. Adrienne Jennings Lockie, Salt in the Wounds: Why Attorneys Should not be Mandated Reporters of Child Abuse, 36 N.M. L. Rev. 125, 148-54 (2006) (discussing potential duty of lawyers who represent domestic violence victims to report abuse by their partners under child abuse mandatory reporter statutes).

[143]. See Ariz. Rules of Prof’l Conduct R. 1.6(b); Conn. Rules of Prof’l Conduct R. 1.6(b) (2007); Ill. Rules of Prof’l Conduct R. 1.6(b)-(c)(2); Iowa Rules of Prof’l Conduct R. 32.1(b)(2)-(3); N.J. Rules of Prof’l Conduct R. 1.6(b)(1)-(2); Tex. Disciplinary Rules of Prof’l Conduct R. 1.05(e); Vt. Rules of Prof’l Conduct R. 1.6(b); Wis. Rules of Prof’l Conduct R. for Attorneys 20:1.6(b).

[144]. See Fla. Rules of Prof’l Conduct R. 4.1.6(b)(1) (1992); Vt. Rules of Prof’l Conduct R. 1.6(b)-(c); Va. Rules of Prof’l Conduct R. 1.6(c)(1) (2007); Wis. Rules of Prof’l Conduct R. for Attorneys 20:1.6(b)-(c) (imposing potentially even broader disclosure duties, as these states require a lawyer to disclose confidential information necessary to prevent a client from committing “a crime”).

[145]. Wash. Rules of Prof’l Conduct R. 1.6 cmt. 23 (quoting In re Boelter, 985 P.2d 328, 334 (Wash. 1999)).

[146]. See, e.g., In re Schafer, 66 P.3d 1036, 1045 (Wash. 2003) (sanctioning lawyer for disclosing confidential client information when the disclosure was designed to reveal misconduct by a sitting judge).

[147]. Wash. Rules of Prof’l Conduct pmbl., para. 14.

[148]. Cf., e.g., State Bar of Ariz. Ethics Comm., supra note 118, at 7 (considering lawyer’s inquiry of whether to disclose client threat to “bring[] [his doctor] down with him” when client committed suicide, and concluding that in light of the lawyer’s judgment not to take the threat seriously, the lawyer was not required to disclose the client’s threat). Of course, the reasonableness standards in 2006 RPC 1.6(b)(1) could be interpreted to mean that so long as a reasonable lawyer could have perceived a reasonably certain threat of death or substantial bodily harm, the duty is triggered. In that case, the fact that other reasonable lawyers might disagree would not protect the non-reporting lawyer from ethical liability.

[149]. Wash. Rules of Prof’l Conduct R. 1.6 cmt. 14.

[150]. The American Heritage Dictionary 961 (Joseph P. Pickett, ed., Houghton Mifflin Co. 4th ed. 2002) (defining “obviate” as “[t]o anticipate and dispose of effectively; render unnessesary”).

[151]. Conner, supra note 142, at 915; cf. Lockie, supra note 142, at 148-53 (discussing potential duty of lawyers who represent domestic violence victims to report abuse by their partners under child abuse mandatory reporter statutes, and resulting problems).

[152]. Wash. Rules of Prof’l Conduct R. 1.6 cmt. 6.

[153]. See, e.g., 42 U.S.C. § 1320d-6 (2000) (establishing criminal penalties for the disclosure of an individual’s “unique health identifier”).

[154]. Cf. Wash. Rules of Prof’l Conduct R. 1.6 cmt. 6 (explaining that “[p]aragraph (b)(1) recognizes the overriding value of life and physical integrity”).

[155]. Id. R. 1.6 cmt. 23.

[156]. Id. R. 1.6 cmt. 14.

[157]. Cf. State Bar of Ariz. Ethics Comm., supra note 118, at 3, 7 (examining potential disclosure under mandatory rule, and noting that “[s]hould it be deemed necessary, the discourse required would depend on the circumstances. The purpose . . . would be to prevent the act. . . . Informing the police, for example, would not necessarily be appropriate if other measures under the circumstances would suffice.”).

[158]. For example, 2006 RPC 1.6(b)(1) does not forbid a lawyer from reporting threatened harm anonymously. However, a lawyer should not report a threat anonymously if, under the circumstances, the lawyer reasonably believes an anonymous report might not be taken seriously, adequately convey the nature of the threat to its recipient, or even reach that intended recipient.

[159]. State Bar of Ariz. Ethics Comm., supra note 118, at 7.

[160]. See Wash. Rev. Code § 5.60.060(2)(a) (2006) (providing that “[a]n attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment”). See generally Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (observing that “[t]he attorney-client privilege is the oldest of the privileges for confidential communications known to the common law”); Restatement (Third) of the Law Governing Lawyers, ch. 5 introductory note (2000) (noting that “[e]very American jurisdiction provides—either by statute, evidence code, or common law—that generally neither a client nor the client’s lawyer may be required to testify or otherwise to provide evidence that reveals the content of confidential communications between client and lawyer in the course of seeking or rendering legal advice or other legal assistance”).

[161]. See generally United States v. Zolin, 491 U.S. 554, 562 (1988) (explaining that “[a]lthough the underlying rationale for the privilege has changed over time . . . courts long have viewed its central concern as one ‘to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice’”) (internal footnote and citation omitted); Upjohn, 449 U.S. at 389 (observing that the privilege’s “purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.”); Purcell v. Dist. Attorney for the Suffolk Dist., 676 N.E.2d 436, 438 (Mass. 1997) (observing that the “attorney-client privilege is founded on the necessity that a client be free to reveal information to an attorney, without fear of its disclosure, in order to obtain informed legal advice”).

[162]. Restatement (Third) of the Law Governing Lawyers § 68 (2000); see also Purcell, 676 N.E.2d at 440 (holding that the “attorney-client privilege applies only when the client’s communication was for the purpose of facilitating the rendition of legal services”); cf. Restatement (Third) of the Law Governing Lawyers § 69 (defining “communication”).

[163]. Wash. Rules of Prof’l Conduct R. 1.6(a) (2006).

[164]. See id. R. 1.6(b)(6); cf. Newman v. State, 863 A.2d 321, 331-32 (Md. 2004) (discussing Maryland’s confidentiality rule, also modeled on ABA Model Rule 1.6, and its relationship to the attorney-client privilege).

[165]. See generally Restatement (Third) of the Law Governing Lawyers § 82 (2000); 5A Karl B. Tegland, Wash. Practice Series: Evidence Law & Practice § 501.20 (5th ed. 2007).

[166]. Zolin, 491 U.S. at 563 (internal citation omitted).

[167]. In re Napster, Inc. Copyright Litig., 479 F.3d 1078, 1090 (9th Cir. 2007); see also Zolin, 491 U.S. at 563 (explaining that the crime-fraud exception applies to “communications ‘made for the purpose of getting advice for the commission of a fraud’ or crime”); Restatement (Third) of the Law Governing Lawyers § 82(a) (2000) (providing that the privilege does not apply when a client “consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud”).

[168]. See State v. Hansen, 862 P.2d 117, 121 (Wash. 1993).

[169]. Id. at 118.

[170]. Id.

[171]. See id. at 118-19.

[172]. Id. at 121-22.

[173]. Some other states appear to take a similar approach. See, e.g., Cal. Evid. Code § 956.5 (West 1995) (“There is no privilege under this article if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.”). Interestingly, in Hansen, the Supreme Court further held that “attorneys, as officers of the court, have a duty to warn of true threats to harm members of the judiciary communicated to them by clients or by third parties.” Hansen, 862 P.2d at 122. The court did not extend this disclosure duty to protect lawyers when the threat, as in Hansen, includes lawyers in their role as officers of the court. Dike v. Dike, 448 P.2d 490, 493 (Wash. 1968) (observing that a lawyer “is an officer of the court—a minister in the temple of justice”).

[174]. See, e.g., infra notes 175 and 178.

[175]. Purcell v. Dist. Attorney for the Suffolk Dist., 676 N.E.2d 436, 437-38, 441 (Mass. 1997).

[176]. Id. at 441.

[177]. Newman v. State, 863 A.2d 321, 335, 340 (Md. 2004).

[178]. Id. at 335-36 (citations omitted) (listing a collection of representative cases). The court also concluded that the lawyer’s non-consensual disclosure under an ethical exception to confidentiality did not unilaterally waive the client’s privilege. See id. at 333. The Washington Supreme Court’s opinion in Hansen did not indicate that it would apply waiver doctrine to an attorney-client privilege claim following a lawyer disclosure under RPC 1.6. See Hansen, 862 P.2d at 121-22.

[179]. See Wash. Rules of Prof’l Conduct R. 1.6(b)(1) (2006). But see id. R. 3.8(e) (limiting prosecutors’ ability to subpoena lawyers to testify against clients to cases of demonstrable necessity). RPC 3.8(e) provides:

The prosecutor in a criminal case shall . . . (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by an applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information.

Id.

[180]. See WSBA Ethics 2003 Committee, Report and Recommendation of the Special Committee for Evaluation of the Rules of Professional Conduct, supra note 114, at 34.

[181]. Taggart v. State, 822 P.2d 243, 254 (Wash. 1992) (quoting Petersen v. State, 671 P.2d 230 (Wash. 1983)).

[182]. Id. (quoting Restatement (Second) of Torts § 315(a) (1965)); see also Honcoop v. State, 759 P.2d 1188, 1194 (Wash. 1988). See generally Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 343 (Cal. 1976).

[183]. Taggart, 822 P.2d at 255 (quoting Petersen v. State, 671 P. 2d 230, 237 (Wash. 1983).

[184]. Wash. Rules of Prof’l Conduct pmbl., para. 20; see also Kevin H. Michaels & Kathryn A. Hockenjos, Attorney Ethics and Liability: A Critical Relation, N.J. Law., Feb. 2006, at 37, 37-39 (exploring the relationship between lawyer ethical duties and lawyer liability to injured non-client third parties).

[185]. See John M. Burman, Lawyers and Domestic Violence: Raising the Standard of Practice, 9 Mich. J. Gender & L. 207, 254 (2003) (noting that “lawyers have been the targets of lawsuits based on their failure to warn. Surprisingly few reported cases, however, involve lawyers and the duty to warn. Thus far, no reported case has held a lawyer liable under a Tarasoff-type theory of failure to warn a non-client about a dangerous client”); Conner, supra note 142, at 913-14 (noting that “[a]lthough courts . . . have been willing to support the choice of an attorney to act for the protection of others, they have been reluctant to find an absolute duty on the part of lawyers to warn foreseeable victims”) (footnote omitted).

[186]. See, e.g., State Bar of Ariz. Ethics Comm., supra note 118, at 8-9 (exploring but not resolving the arguments and authorities for lawyer liability to injured third parties that may flow from Arizona’s mandatory ethical disclosure duty).

[187]. See Buel & Drew, supra note 121, at 471-75, 479-85, 491-96 (arguing for Tarasoff­-styled tort liability for lawyers who do not warn foreseeable victims of domestic violence by the lawyer’s client); Davalene Cooper, The Ethical Rules Lack Ethics: Tort Liability When a Lawyer Fails to Warn a Third Party of a Client’s Threat to Cause Serious Harm or Death, 36 Idaho L. Rev. 479, 482 (2000) (contending that the “individual interest in life is so important that it gives rise to a duty to warn, which should be enforceable in tort”); Sears, supra note 125, at 465-72, 476-77 (arguing that imposition of Tarasoff-based liability for failure to protect third parties would motivate lawyer behavior more effectively than ethical rules). But cf. Conner, supra note 142, at 915 (observing that when the lawyer’s non-consenting client is a domestic violence victim and the duty to report threats involves threats against the client herself, “significant public policy concerns suggest that attorneys should not be held responsible for failing to act for the protection of their victim-client”).

[188]. Hawkins v. King County, 602 P.2d 361, 365 (Wash. App. 1979).

[189]. Id. at 365-66 (upholding summary judgment for the lawyer because the victim already knew of the threat posed by the client).

[190]. As of August 6, 2007, Westlaw’s Keycite lists 106 citations to Hawkins, including 93 citations in law journals and other secondary sources addressing the potential for lawyer duties and liability to third parties.

[191]. See generally Wash. Rev. Code Ann. § 9.69.100 (West 2003) (imposing criminal liability on persons who observe the commission or preparation of a violent offense or an assault against a child and fail to report it to law enforcement, except “[t]his section shall not be construed to affect privileged relationships as provided by law”).

[192]. See Wash. Rules of Prof’l Conduct R. 1.6 cmt. 6 (2006) (explaining that this exception “recognizes the overriding value of life and physical integrity”).

[193]. The 2006 version of RPC 3.3 provides:

a) A lawyer shall not knowingly:

1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client unless such disclosure is prohibited by Rule 1.6;

3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

4) offer evidence that the lawyer knows to be false.

b) The duties stated in paragraph (a) continue to the conclusion of the proceeding.

c) If the lawyer has offered material evidence and comes to know of its falsity, the lawyer shall promptly disclose this fact to the tribunal unless such disclosure is prohibited by Rule 1.6.

d) If the lawyer has offered material evidence and comes to know of its falsity, and disclosure of this fact is prohibited by Rule 1.6, the lawyer shall promptly make reasonable efforts to convince the client to consent to disclosure. If the client refuses to consent to disclosure, the lawyer may seek to withdraw from the representation in accordance with Rule 1.l6.

e) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

f) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Id. R. 3.3.

[194]. See id.

[195]. See Model Rules of Prof’l Conduct R. 3.3(c) (2007).

[196]. See id. R. 3.3(a)(3), R. 3.3, cmts. 10–11.

[197]. Wash. Rules of Prof’l Conduct R. 3.3(c) (providing that “[i]f the lawyer has offered material evidence and comes to know of its falsity, the lawyer shall promptly disclose this fact to the tribunal unless such disclosure is prohibited by Rule 1.6”).

[198]. Id.

[199]. See Vernon R. Pearson & Peter Greenfield, Introduction 1 Kelly Kunsch, Wash. Prac. Series § 3 (4th ed. 1997). This disclosure duty, like all the duties under 2006 RPC 3.3, continues “to the conclusion of the proceeding.” Wash. Rules of Prof’l Conduct R. 3.3(b). “A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.” Id. R. 3.3 cmt. 13.

[200]. Wash. Rules of Prof’l Conduct R. 3.3(d).

[201]. Id.; see also id. R. 1.16.

[202]. Id. R. 3.3(a)(2).

[203]. See id. R. 3.3 cmt. 12.

[204]. Cf. Nathan M. Crystal, Professional Responsibility: Problems of Practice and the Profession 116-17 (3d ed. 2004) (noting ambiguity on whether a lawyer may disclose a client’s future intent to testify falsely). 2006 RPC 3.3(a)(2) does not make entirely clear that a lawyer may disclose a client’s future intent to testify falsely. RPC 3.3 Comment 6 provides only: “If a lawyer knows that the client intends to testify falsely . . . the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness’s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false.” Wash. Rules of Prof’l Conduct R. 3.3 cmt. 6.

[205]. Model Rules of Prof’l Conduct R. 3.3(a)(1) (2007) (providing that “[a] lawyer shall not knowingly[] make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer”).

[206]. Wash. Rules of Prof’l Conduct R. 3.3(a)(1).

[207]. See id.

[208]. The local vernacular may change, but to my knowledge the practice principle remains the same from jurisdiction to jurisdiction. For example, a lawyer who handles an initial criminal appearance may need to address the client’s bail conditions without having a chance to investigate fully. The lawyer therefore may offer facts about the client’s residence, employment, or other information relevant to bail based solely on representations by the client, or by friends or family present in court or whom the lawyer can reach by telephone. Young lawyers quickly learn that this information does not always pan out upon further investigation, and a lawyer relying on unverified information commonly will communicate the lack of verification to the court in some accepted manner, such as, “Your Honor, on information and belief, my client is employed full-time.”

[209]. See Wash. Rules of Prof’l Conduct R. 3.3(a)(1).

[210]. The first of these arguments was suggested to me by lawyers at CLE programs where I presented the 2006 amendments to RPC 3.3.

[211]. See supra Part III.

[212]. See Dike v. Dike, 448 P.2d 490, 493 (Wash. 1968) (noting the dual role of lawyers as advocates and officers of the court, and observing that a lawyer must adhere to his or her duty as “an officer of the court—a minister in the temple of justice”).

[213]. See Wash. Rules of Prof’l Conduct R. 3.3 cmt. 3 (acknowledging that lawyers will not always have personal knowledge of matters asserted by the lawyer, but that “[t]here are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation”).

[214]. See id.

[215]. Id. R. 3.3(a)(4).

[216]. State v. Berrysmith, 944 P.2d 397, 398-99 (Wash. App. 1997).

[217]. Id. at 402.

[218]. See Wash. Rules of Prof’l Conduct R. 3.3(e).

[219]. See id.

[220]. See, e.g., Taylor v. United States, 287 F.3d 658, 661-62 (7th Cir. 2002) (observing that “the accused may not be prohibited from testifying—not by a judge, not by a lawyer. So if a defendant’s theory were that he told his lawyer he wanted to testify, but that his lawyer refused to allow this (for example, flatly refused to call his client to the stand without suggesting the possibility, if he thought that his client’s testimony would be perjury, that he could withdraw and allow the accused to represent himself), this would be a sound constitutional claim”) (citation omitted).

[221]. See Nix v. Whiteside, 475 U.S. 157, 173 (1986); Harris v. New York, 401 U.S. 222, 225 (1971) (holding that the right to testify does not encompass a right to commit perjury).

[222]. See Wash. Rules of Prof’l Conduct R. 3.3 cmt. 7. In the narrative approach, the lawyer generally does not examine or aid the client during any portion of his or her testimony that the lawyer knows to be false, nor does the lawyer argue the false portions of the client’s testimony in summation. The lawyer also may advise the court in general terms of his or her intended course of action and the underlying reason for it. See generally People v. DePallo, 754 N.E.2d 751, 754-55 (N.Y. 2001) (approving of defense counsel’s ex parte disclosure of client’s intent to testify falsely to trial judge and narrative approach to the presentation of the client’s testimony). Washington lawyers ethically may employ this narrative approach when practicing in a jurisdiction that requires or permits it. See Rules of Prof’l Conduct R. 8.5(a).

[223]. Wash. Rules of Prof’l Conduct R. 3.3 cmt. 6.

[224]. Id. Even when a lawyer knows that a client’s testimony will be false, a lawyer’s refusal to permit a criminal defendant to present testimony may raise constitutional questions, if this ethical command means keeping the defendant off the witness stand altogether. See Taylor, 287 F.3d at 661-62; see also supra note 221 and accompanying text.

Comments are closed.