President's Message 2

Confidentiality

The attorney-client privilege is one of the oldest legal privileges, dating back to Elizabethan England. The Bar Association, following an overwhelming vote by the House of Delegates, is supporting the existing and continued viability of the privilege. Rhode Island's present Rule of Professional Conduct 1.6 provides for attorney-client confidentiality. It allows an attorney to breach the confidentiality only in two circumstances: to prevent the client from committing a crime that the lawyer believes is likely to result in imminent death or substantial bodily harm or to allow the attorney to establish a claim or defense in litigation in certain limited circumstances.

The privilege is so important to the attorney-client relationship that the United States Supreme Court held in the "Vince Foster" case that the privilege survives the death of the client. Swidler & Berlin v. United States, 524 U.S. 399 (1998). Chief Justice Rehnquist wrote: "Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel."

In 2002, Rhode Island's Chief Justice Williams formed a Committee to Review the Rules of Professional Conduct for Attorneys. He charged the committee with reviewing Rhode Island's Rules of Professional Conduct and recommending any changes, especially in light of the American Bar Association's proposed new model rules adopted as a result of the Ethics 2000 project that began in 1997. Former Chief Justice Weisberger chaired the committee.

The new model rules include a particularly controversial change to Rule 1.6. The proposed changes would allow an attorney to reveal confidential communications with a client in several circumstances not previously allowed. Those circumstances would include situations where the attorney "reasonably believes" disclosure:

  • will prevent "reasonably certain death or substantial bodily harm;"
  • will 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;"
  • will "prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably

The ABA initially rejected the proposed changes but then in a close vote, probably influenced by the Enron and other similar scandals, voted to approve them in 2003. The Rhode Island committee also by a close vote recommended adoption of the model rule 1.6. There were two dissenting groups. One group favored keeping the existing rule. The other group favored making disclosure mandatory in order to prevent loss of life or serious personal injury. In January 2006, the committee transmitted its report to the Supreme Court which posted it on its website and requested comments by May 24, 2006.

One of the committee members who favored keeping the existing Rule was former Bar Association President John Roney. At the June 26th House of Delegates meeting, he made an impassioned speech proposing that the Bar Association take a position supporting the existing Rule. The House voted to hold a special meeting on July 25th for the delegates to consider the issue. When the House reconvened a month later it heard two more presentations from members of the committee, former Bar President Alan Flink and Elizabeth DelPadre. (She was "pinch-hitting" for Chief Justice Weisberger who had hoped to address the House but was unable to do so).

Mr. Flink had been a member of the dissenting group that favored mandatory disclosure where necessary to prevent death or substantial bodily harm. He otherwise supported adoption of the Model Rule. Ms. DelPadre presented the majority's position in support of the Model Rule.

The House debated the issue and voted 37-3 to support the existing Rule. There were a number of arguments advanced in support of the existing Rule including the client's expectations of confidentiality, the difficulty of interpreting the proposed rule so as to permit disclosure, the possibility of the attorney being subject to liability to third-parties if he or she failed to make a permissive disclosure, and the possibility of liability to the client if the attorney made a disclosure.

By the time this is published the Bar Association will have filed a memorandum with the Supreme Court requesting it to consider the memorandum out of time and also requesting the opportunity to be heard at a hearing. We will argue strenuously for the existing and largely uncompromised attorney-client privilege so our clients can remain confident their communications with us are confidential.