Friday, April 13, 2007

Sisk on Confidentiality, Mandatory Disclosures, and Iowa's New Rules of Professional Conduct

Posted by Alan Childress
Gregory Sisk (St. Thomas--Law), pictured right, has posted to SSRN his article, "Change and Continuity in Attorney-Client Confidentiality: The New Iowa Rules of Professional Conduct."  It is also in 55 Drake LawSiskstthomas3 Review 347 (2007). 

Sisk notes that Iowa now makes some disclosures of client confidences mandatory, such as a serious threat of imminent bodily harm -- mandatory where the ABA Model Rules make disclosure a judgment call of the attorney.  He thinks Iowa's rules make a good test case for study of disclosure requirements, confidentiality, and court discretion.  His abstract is after the jump.

Sisk's abstract is:

As part of the new Iowa Rules of Professional Conduct that became effective on July 1, 2005, the Iowa Supreme Court adopted language in Rules 1.6 and 3.3 that enlarged the circumstances for permissive disclosure by lawyers of attorney-client confidential information, but also established a mandatory requirement of disclosure in three contexts. First, under Rule 1.6, lawyers have been granted expanded discretion to disclose confidential information for the purpose of preventing, mitigating, or rectifying financial or property harm caused by a client's commission of a crime or fraud when the lawyer's services were used in furtherance of that conduct. Second, a lawyer is required to reveal information if the lawyer believes it reasonably necessary to prevent imminent death or substantial bodily harm. Third, Rule 4.1(b), which forbids a lawyer from knowingly "fail[ing] to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client," when read together with the exceptions in Rule 1.6(b)(2) and (3) permitting disclosure to prevent or rectify substantial financial harm caused by client criminal or fraudulent behavior, effectively requires disclosure of confidential information in certain circumstances. Fourth, under Rule 3.3, a lawyer who discovers that a client has committed fraud upon a tribunal in a proceeding that is not yet concluded is obliged to take reasonable remedial measures, including disclosure to the tribunal if necessary. Unlike the standard under the prior Iowa Code of Professional Responsibility, the fact that the lawyer's knowledge of the client's perjury or other fraud on the court was obtained through a confidential communication does not excuse nondisclosure of the information.

While the changes in the ethics rules are meaningful, and in certain respects strike a different balance than under previous ethical standards between upholding confidentiality and affirming other professional or public-regarding obligations, the effect of these changes should not be overstated nor should the extent of the change be exaggerated. Rule 1.6 provides more in the way of continuity, than an introduction of change, in attorney-client confidentiality in Iowa. The core of attorney-client confidentiality remains undisturbed. The lawyer's discretion or obligation to disclose ordinarily is limited to extraordinary circumstances in which serious harm is reasonably certain to occur or has resulted. The exceptions to confidentiality remain few and continue to be narrowly drawn. In sum, the promise of confidentiality offered by the lawyer to the client continues to be as good as gold, excepting only those rare circumstances where the client's own persistence along a wrongful path or other disturbing potential for great harm tarnishes that expectation of confidentiality.

This Article is designed to assist Iowa lawyers in becoming more informed about confidentiality and familiar with the new rules, while placing the subject within the context of Iowa history and expectations. Moreover, because Iowa's new rules closely follow the Model Rules of Professional Conduct, including the changes made during and following the Ethics 2000 revisions, Iowa should be a good case study for the new standards as they affect confidentiality. As with any set of rules, their effectiveness and integrity depend not only upon what the text says but also upon the informed discretion of lawyers in applying those rules and the wise judgment of the courts in interpreting those rules in the context of each case.

http://lawprofessors.typepad.com/legal_profession/2007/04/sisk_on_confide.html

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