Concept

Limits and Related Rules

Disclosure to prevent death, bodily harm, or client crime or fraud

Rule 1.6(b) begins with a grant of permission: a lawyer "may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary" in each situation it goes on to list.¹ The harm-prevention paragraphs, (b)(1) through (b)(3), are three of those situations, and each is worded as a permission, not a command.² A permission in a rule of professional conduct tells a lawyer which disclosures will not draw discipline, and nothing more. Two limits follow from that.

The first limit is that a rule freeing a lawyer to speak does not decide what a court may compel the lawyer to say. That question belongs to the law of privilege, which has its own purposes and its own exceptions. The second limit appears when the permission gives the lawyer nothing to use, either because the facts fall short of an exception or because the jurisdiction withholds it. A lawyer whose services are being used for a client's wrongdoing still has a move in that case: she can withdraw and distance herself from her earlier work.

Privilege Versus Confidentiality

Rule 1.6(b)(1) permits a lawyer to reveal information relating to the representation, to the extent the lawyer reasonably believes necessary, to prevent reasonably certain death or substantial bodily harm, and paragraphs (b)(2) and (b)(3) grant a similar permission for certain financial wrongs.³ Each permission releases the lawyer from the disciplinary duty of confidentiality. The attorney-client privilege does a different job. It is an immunity from legally compelled disclosure, so a court, prosecutor, or opposing party cannot force the lawyer to testify about protected communications. Because the two protections do different work, an exception to confidentiality in the ethics rules is not automatically an exception to the privilege.⁴ A lawyer who may, or even must, tell someone about a client's intent to harm another person has not become a witness against the client, because the persisting privilege would still keep the lawyer from being called to testify about that communication.⁵

The two protections also differ in breadth, and that difference is why they come apart. Confidentiality is broadly defined and covers client communications along with much else. The privilege attaches only to certain communications between lawyer and client. The broad protection is the weaker one: confidential information is subject to several exceptions and may carry no immunity from legal process, while privileged information is subject to fewer exceptions and does provide immunity from legally compelled disclosure.⁶

Because privileged communications are a subset of confidential information, a natural question is whether a Rule 1.6(b) exception can reach them at all. It can, and it has to. A lawyer ordinarily learns the most important facts about a representation through communications with the client, or through material inextricably intertwined with them, so if the privilege also blocked ethical disclosure, the exceptions in the rules would have little effect.⁷ The reconciliation lies in purpose and method. The exceptions in Rules 1.6, 3.3, and 4.1 apply to client communications for the limited purposes, and by the generally non-evidentiary means, that the rules allow, such as warning a target or alerting law enforcement. Unless an exception to the privilege also applies, the lawyer's disclosure is limited to non-testimonial revelation for an extra-evidentiary purpose.⁸

A warning and testimony differ in kind. A warning is a single act aimed at stopping an injury, and it can be confined to what the target or the police need to know. Testimony in a later prosecution would make the lawyer a source of evidence against the client. The privilege gives way only through its own exception, which has a separate trigger and is taken up below.

The planned-attack scenario shows the two protections working separately. A client tells the lawyer in confidence that he intends a violent attack on another person, and he has not used the lawyer's advice to advance the plan. If the lawyer reasonably believes the attack is reasonably certain to cause death or substantial bodily harm, (b)(1) permits her to disclose to prevent it, and she may tell the target or law enforcement.⁹ In a later prosecution of the client for the attack, the privilege persists and the lawyer cannot be called to testify against him about that communication.¹⁰ A client's revelation of an intent to commit a future crime does not remove the privilege unless the communication itself exploits the representation to advance the criminal purpose.¹¹ Paragraph (b)(1) contains no requirement that the client have used the lawyer's services, which is why it can apply on facts where the privilege exception cannot.¹²

The privilege has its own exception, with its own trigger. When a client uses legal services to advance or conceal criminal or fraudulent conduct, with or without the attorney's knowledge, the illegitimacy of the objective prevents formation of an authentic attorney-client relationship, and the privilege is lost.¹³ The client must pervert the relationship toward the proscribed end. A client who merely asks whether a proposed course of action is lawful keeps the privilege even if the lawyer concludes the course would be criminal or fraudulent, because the privilege encourages people to obtain a lawyer's help in conforming their behavior to the law.¹⁴ The same fact, the client's use of the lawyer's services to further a crime or fraud, is an element of (b)(2) and (b)(3), so when a client defrauds with the lawyer's help, the ethics permission and the evidentiary exception can line up.¹⁵

Because this exception would otherwise let any litigant reach privileged communications, the party who wants the testimony carries the burden. That party must make a prima facie showing that the communications were in furtherance of an intended or present illegality, and must also prove that some relationship exists between the communications and the illegality.¹⁶ The exception applies only where the communication was intended to advance the client's illicit purpose or actually did, so after-the-fact evidence of the crime or fraud is insufficient.¹⁷ A showing that the testimony is badly needed does not substitute for that proof.

Set beside the ethics exceptions, the crime-fraud exception is broader in one respect and narrower in another. It is broader because it reaches a client's use of legal services to conceal as well as to advance wrongdoing, and its description turns on that use of legal services, not on the size of any financial injury, which (b)(2) and (b)(3) each require.¹⁸ It is narrower because the particular communications must advance the illegality. A threat of violence that satisfies (b)(1) therefore leaves the privilege standing, and a client's after-the-fact account of a finished wrong can stay privileged even though (b)(3) may permit disclosure to rectify its consequences.¹⁹

One engagement produced two different answers in that scene, which is why an exam stem must be read for the communication at issue and not only for the fraud. Questions usually pair the two issues, whether the lawyer may speak and whether the lawyer can be made to testify, so it helps to run them as separate tracks.

Exam Analysis Steps

Because the ethics permission and the evidentiary protection have different tests, the analysis is clearest when each is run on its own terms. The steps are these:

Ask whether a Rule 1.6(b) exception applies on its own terms (the harm, its likelihood, and for (b)(2) and (b)(3) the use of the lawyer's services), and confine any disclosure to what the lawyer reasonably believes necessary.
Treat the ethics permission as answering only the disciplinary question, and ask separately whether the communication is a privileged communication between lawyer and client.
If it is privileged, ask whether the client used the lawyer's services or advice to advance or conceal a crime or fraud, and whether the party seeking the testimony can make a prima facie showing connecting those communications to the illegality.
If no exception to the privilege applies, conclude that any disclosure was non-testimonial and that the lawyer cannot be called to testify against the client.

Noisy Withdrawal

A lawyer whose services are being used to further a client's crime or fraud usually has to leave the engagement, whether or not any Rule 1.6(b) exception lets her speak. Rule 1.16(a)(1) requires withdrawal when the representation will result in a violation of the rules of professional conduct or other law.²¹ Rule 1.16(b) adds permissive grounds: the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent, or the client has used the lawyer's services to perpetrate a crime or fraud.²² The mandatory ground fits the lawyer who would otherwise keep working on a live fraud, and the second permissive ground also reaches a lawyer who discovers the misuse after it is over. Two conditions attach to any withdrawal. The lawyer must continue when a tribunal orders her to, and on termination she must take reasonably practicable steps to protect the client's interests, such as giving reasonable notice and surrendering papers and property to which the client is entitled.²³

Withdrawal ends the representation but does not release the information. After withdrawing, the lawyer must still refrain from disclosing the client's confidences except as Rule 1.6 allows.²⁴ That leaves a gap in a jurisdiction that bars outside disclosure of a client's wrongdoing, and on facts that fall short of (b)(2) or (b)(3). A lawyer who simply walks away leaves her opinion letter or collateral list in the hands of a third party who keeps relying on it. The noisy withdrawal fills that gap. Even in the minority of jurisdictions that prohibit revealing information to prevent a client's securities fraud, lawyers may, and often must, withdraw, and it can be necessary to alert a third party to the fact of the withdrawal and to disaffirm a previously prepared document, opinion, or affirmation.²⁵ The device works because a disaffirmance takes back the lawyer's own endorsement and says nothing about what the client told her. A recipient who learns that a lawyer has withdrawn and that her earlier work should no longer be trusted may draw its own inferences, but the lawyer has stated no confidence and has stopped lending her work to the deception.

Hypothetical Illustration

A lawyer's letters to a bank listed the collateral behind a client's loan, and she then learns that the lists were falsified. She withdraws, tells the bank she no longer represents the client, and says her earlier letters should not be relied on. She has revealed nothing about what the client did, though the bank can draw its own conclusions, and she has done what a noisy withdrawal allows. A lawyer in the identical position who practices in a state that bars outside disclosure and offers no (b) exception goes further. His letter to the bank describes the falsified lists and explains how the client prepared them. That letter is an express disclosure of the client's confidences, nothing in his state's rules releases him to send it, and he exposes himself to discipline even though a plain disavowal would have been proper.

The line those two lawyers straddle is the one an exam answer must draw. A notice of withdrawal and a disavowal of the lawyer's own prior work stay on the permitted side. Any statement of what the client did, or of how the documents were false, is an express disclosure that needs an exception of its own under Rule 1.6(b).²⁶ Students often assume that withdrawing frees a lawyer to explain herself, and it does not. Disaffirmance is a narrow signal, and an express revelation is a separate act that must be justified separately.

Rule 4.1(b) explains why the signal is sometimes more than an option. It provides that a lawyer shall not "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."²⁷ The closing qualifier decides which tool the lawyer has. When an exception in (b)(2) or (b)(3) permits the disclosure, Rule 1.6 does not prohibit it, and the qualifier no longer excuses silence.²⁸ When the jurisdiction bars outside disclosure or no exception fits the facts, the lawyer's remaining tools are withdrawal and, when necessary, notice of it together with disaffirmance.²⁹

Rule 1.13 adds a related limit for lawyers who represent organizations. Rule 1.13(c) permits a lawyer to disclose confidential information to those outside the organization for the purpose of protecting the organization. When the organization has retained the lawyer to investigate an alleged violation of law, or to defend the organization or an officer, employee, or other constituent against a claim arising out of an alleged violation of law, Rule 1.13(d) withdraws that permission.³⁰

Key Exam Rule

Noisy withdrawal

Rule 1.16(a)(1) requires a lawyer to withdraw when the representation will result in a violation of the rules or other law, and Rule 1.16(b) permits withdrawal when the client persists in, or has used the lawyer's services for, a crime or fraud. Withdrawal does not release the client's confidences, which the lawyer must still protect except as Rule 1.6 allows. Even where outside disclosure is barred, a lawyer may alert a third party to the withdrawal and disaffirm her earlier work, a signal that does not state any confidence. An express disclosure of the client's information still needs a Rule 1.6(b) exception, and Rule 4.1(b) bars failing to disclose a material fact needed to avoid assisting the client's crime or fraud unless Rule 1.6 prohibits disclosure.³¹