It’s a right that has become as expected as medical-records privacy: attorney-client privilege.
But under proposed changes to the rules that govern the practice of law in Rhode Island, the number of circumstances where that privilege can be bypassed may increase.
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On Jan. 4, the R.I. Supreme Court will hold a hearing on proposed changes to the Rules of Professional Conduct for Attorneys, the statutes adopted by the court to regulate the behavior of lawyers and enforced by the court’s Disciplinary Board.
Particularly at issue will be proposed changes to Rule 1.6, which defines attorney-client privilege.
That rule currently allows only two exceptions to the privilege, which otherwise protects the confidentiality of conversations between attorneys and the parties they represent. The first exception is to prevent the client from “committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm”; the second, to “establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.”
In either instance, as in the changes now proposed, disclosure is permitted but not required.
The new proposals, which come in the wake of corporate scandals such as Enron’s and amid ongoing efforts to ensure the ethical practice of law, would add two more exceptions:
– The first proposal would make an exception for cases when the lawyer reasonably believed disclosure would 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 the lawyer’s services.”
– The second would allow the attorney to breach privilege in order to “prevent, mitigate or rectify substantial injury to the financial interests of property that is reasonably certain to result or has resulted” from the client’s actions, or to comply with another law or a court order.
Rhode Island Bar Association President Thomas W. Lyons III, a partner in Providence law firm Strauss, Factor, Laing & Lyons, said the association has largely opposed any changes to the privilege rules, despite support for the proposals elsewhere.
After initially rejecting the proposed changes, however, the American Bar Association voted to approve them in 2003.
And in Rhode Island, a committee that R.I. Supreme Court Chief Justice Frank F. Williams established to review the rules of professional conduct recommended the adoption of the model rule that is to be heard by the court early next year.
In arguing the basis for the proposed changes, the committee wrote that the fraud clause was necessary because in “such a serious abuse of the client-lawyer relationship the client forfeits protection of this Rule [1.6].”
“The client can, of course, prevent such disclosure by refraining from the wrongful contact,” the committee added.
But the Rhode Island Bar Association’s House of Delegates, which debated the changes at two meetings this summer, voted against the changes, instead supporting the existing rule by a 37-to-3 tally.
According to Lyons, the association opposes any changes to the rule for several reasons, including fear they would impair an attorney’s ability to extract information from clients to build a case.
“Without the promise of confidentiality,” Lyons said, “the client may be leery of telling you what the truth is.” Clients may withhold information they fear may be illegal, he said, even though that information may be crucial in their representation.
In addition, Lyons said, lawyers fear the relaxed confidentiality rules could put lawyers at greater risk of being sued by their clients or by a third party claiming they should have disclosed information.
In a memorandum to the state Supreme Court, the bar association called the proposed changes “unwarranted and unnecessary.”
In addition, the fact that the disclosures would be permitted, but not required, would change the nature of attorney-client privilege, the memorandum states. Although the privilege is supposed to belong to the client, the changes would make the confidentiality of information a discretionary call for the attorney, potentially eroding the nature of the attorney-client privilege.
But, while the members of the Rhode Island House of Delegates are largely opposed to amending the current regulations, some lawyers do support changing Rule 1.6.
Chief among them is Alan S. Flink, a former association president and now-retired attorney.
Although he rejects the permission to disclose that the rules committee recommends in cases of fraud and financial harm, Flink said would like to make it mandatory for lawyers to disclose privileged information to prevent an act that could result in death or serious bodily harm.
He said attorneys have the obligation, as human beings, to protect life.
“My view was and is an ethically and morally responsible position for anyone to take,” Flink said.
