Confidentiality and Candor under the 2006 Washington …blogs.gonzaga.edu/gulawreview/files/2011/02/Holland.pdfConfidentiality and Candor under the 2006 Washington Rules of Professional

Confidentiality and Candor under the 2006 WashingtonRules of Professional Conduct

Brooks Holland*

TABLE OF CONTENTS

I. INTRODUCTION .................................................................................................. 327H1. B ACKGROUND ................................................................................................... 329Im . R ULE 1.3: D ILIGENCE ....................................................................................... 332IV. RULE 1.6: CONFIDENTIALITY ........................................................................... 337

A . Confi dentiality .......................................................................................... 339B. Disclosure of Confidential Information .................................................. 340

1. D iscretionary D isclosure ................................................................... 3412. M andatory D isclosure ....................................................................... 343

a. When is the duty to report triggered? ........................................ 349b. What is the scope of this duty, once triggered? .. . . . . . . . . 352c. Will otherwise privileged information disclosed under

2006 RPC 1.6(b)(1) remain privileged? ................................... 355d. Will lawyers who fail to report a client's threat become

liable in tort to victims of client violence? ............................... 359V R ULE 3.3 : C ANDOR ........................................................................................... 361

V I. C ON CLUSION ..................................................................................................... 366

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 theWashington State Bar Association ("WSBA") Ethics 2003 Committee to update theRPC, which had not been updated since 1985.1 The 2006 RPC, as ultimately

* 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 studentsat Gonzaga University School of Law, supplied outstanding research assistance. Katharine Tylee andother members of the Gonzaga Law Review also provided excellent feedback. Early drafts of thisarticle were presented at CLE programs sponsored by the Washington State Office of PublicDefense, the Washington State Defenders Association, and the Washington State Tria Lawyer'sAssociation. I am thankful to the many lawyers who supplied insightful comments and questionsduring these CLE programs. I am also thankful to Gonzaga University School of Law for its financialsupport of this research project. Unless noted otherwise, the anecdotal observations andhypotheticals presented in this article draw on the author's experience as a public defender in NewYork City from 1994-2005, and current criminal appellate practice in the Ninth Circuit Court ofAppeals.

1. See Douglas Ende, Supreme Court Adopts "Ethics 2003" Amendments to Rules of

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enacted,2 reflect several important policy considerations that substantially havealtered the ethical playing field for Washington lawyers.

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

Part II of this article presents a brief general background to the RPC and theirrelationship to the influential American Bar Association Model Rules of ProfessionalConduct ("Model Rules"). Part III considers 2006 RPC 1.3, which may reveal abroader vision of ethical lawyer advocacy under which the rules of confidentialityand candor should be evaluated. Part 1V dissects 2006 RPC 1.6's regulation of clientconfidentiality, highlighting a new confidentiality exception that the 2006amendments impose on Washington lawyers: a mandatory duty to disclose when aclient presents a reasonably certain threat of death or serious physical injury to a thirdperson. After detailing the background to and content of this mandatory duty, Part IVassesses the potential efficacy of this duty as a policy choice, and raises four questionsthat lawyers should consider when practicing under this duty.

Part V of the article tackles 2006 RPC 3.3 and the issue of attorney candor totribunals. Part V not only reviews the important changes to RPC 3.3 under the 2006amendments, but also examines the relationship that 2006 RPC 3.3 shares with RPC1.6 in defining the scope of, and the limitations to, the confidentiality by whichlawyers foster and protect meaningful attorney-client relationships.

Professional Conduct, WASH. B. NEWS, Sept. 2006, at 13, 13-17, available athttp://wsba.org/media/publications/bamews/sept06-ende.htm.

2. See generally WASH. RULES OF PROF'L CONDUCT (2006). Ultimately finalized andadopted by the Washington Supreme Court, the 2006 RPC amendments were drafted andrecommended by the WSBA. The 2003 Ethics Committee initiated the revision process, whichconcluded 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 amongits members," to "[a]dminister ... discipline of its members," to "[p]rovide periodic reviews andrecommendations concerning court rules," to "[i]nform and advise lawyers regarding their ethicalobligations," and to "[s]ponsor and maintain committees, sections, and divisions whose activitiesfurther these purposes"). For the WSBA Ethics 2003 Committee Composition, see WSBA Ethics2003 Committee Organization & Membership,http://wsba.org/lawyers/groups/ethics2003/ethics2003committeeroster.doc.

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H. BACKGROUND

The Washington RPC last were overhauled in 1985, and at the time, they largelyparalleled the Model Rules.3 The Model Rules have evolved significantly since the1980S,4 however, and an increasing number ofjurisdictions have updated their ethicalrules to reflect the most recent iterations of the Model Rules.5 Responding to a call bythe ABA Ethics 2000 Committee and the Conference of Chief Justices for increaseduniformity in ethical rules between jurisdictions,6 the WSBA undertook revision ofthe 1985 RPC to conform the RPC to the most recent Model Rules.7 The WSBAEthics 2003 Committee emphasized that greater uniformity between the RPC and theModel Rules would help Washington lawyers better anticipate ethical requirements inother jurisdictions, and non-Washington lawyers better abide by Washingtonstandards. 8 Uniformity also would stabilize client expectations between jurisdictions,and improve law students' required studies and lawyers' ability to obtain CLEcredits. 9 As a result, the 2006 RPC more closely parallel the modem Model Rules inboth form and substance.' 0

The most immediately noticeable change to the RPC is the inclusion of officialexplanatory comments following each rule." The inclusion of Model Rules-basedcommentary was viewed as critical because of the added substance and clarity thatcommentary would provide to practitioners and courts, especially since Washington

3. See Robert H. Aronson, An Overview of the Law of Professional Responsibility: TheRules of Professional Conduct Annotated and Analyzed, 61 WASH. L. REv. 823, 825 (1986) (notingthat the 1985 "RPC are virtually identical to the [1983] Model Rules").

4. See generally E. Norman Veasey, Cornm'n on Evaluation of Rules of Prof'I Conduct"Ethics 2000," Chairs Introduction to MODEL RULES OF PROF'L CONDUCT (2002), available athttp://wwwabanet.org/cpr/mrpcle2kchair intro.html.

5. See Letter from WSBA Ethics 2003 Comm. to Justice Charles W. Johnson (Sept. 2,2005), http://wsba.org/lawyers/groups/ethics2003/ethics2OO3lettertojusticejohnson.pdf [hereinafterLetter to Justice Johnson] (noting that as of August 2005, "47 jurisdictions ... have adopted a ModelRules-based system," and "41 have adopted comments based in whole or in substantial part on theModel 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

CoNDuc, http://wsba.org/lawyers/groups/ethics2003/ethics2003gr9coversheet.doc; see also Letterto Justice Johnson, supra note 5.

8. See Letter to Justice Johnson, supra note 5; WSBA BOARD OF GOVERNORS, supra note7; see also WSBA-Special Comm. for the Evaluation of the Rules of Prof I 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 CONDUCr pmbl., para. 23 (stating that "[tlhe structure of

these Rules generally parallels the structure of the American Bar Association's Model Rules ofProfessional Conduct"). But cf id. para. 22 (noting that "[n]othing in these Rules is intended tochange existing Washington law on the use of the Rules of Professional Conduct in a civil action").

11. See Ende, supra note 1.

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courts, the WSBA Professional Responsibility Counsel, and the WSBA Rules ofProfessional Conduct Committee previously have relied on Model Rules Commentsto interpret parallel RPC provisions.12 The Preamble to the 2006 RPC clarifies therole of the Comments: "[t]he Comment accompanying each Rule explains andillustrates the meaning and purpose of the Rule.... The Comments are intended asguides to interpretation, but the text of each Rule is authoritative."' 3

The Model Rules were not adopted uncritically, however, even in the structure ofthe RPC Comments themselves. For example, some Model Rules Comments wereadopted but modified to suit Washington practice norms. 14 These modifiedComments are labeled 'Washington Revision."' 5 If a 2006 RPC contains a Commentwith no Model Rule counterpart, the 2006 RPC Comment is placed after theComments corresponding to the Model Rule Comments, under "AdditionalWashington Comments." 16 Additionally, if a Model Rule Comment is deleted fromthe 2006 RPC Comments, the corresponding 2006 RPC Comment is labeled"Reserved" and left blank. 17

Several substantive Model Rules also were supplemented, modified, or rejectedaltogether to reflect Washington practice norms and expectations, as well as evolvingWashington policy. The 2006 RPC consequently include a few unique ethicalprovisions unaddressed by the Model Rules that "traditionally and successfully[have] been addressed in Washington."' 8 For example, 2006 RPC 1.15B establishesdetailed rules regulating lawyer handling of trust account records. These trust accountrules do not exist under the Model Rules.

With other rules, the drafters concluded that an "existing [RPC] is clearly moresuited to the regulation of Washington lawyers than its Model Rule counterpart."' 9 Anexample can be found in 2006 RPC 8.3, which modifies the Model Rule standard

12. See Letter to Justice Johnson, supra note 5; see also Letter from Douglas J. Ende toEthics 2003 Committee (Aug. 11, 2005), http://wsba.org/lawyers/groups/ethics2003/encl2reportersmemotocommittee.pdf (citing fifteen published Washington opinions that haveexpressly relied on Comments to the Model Rules or cited them with approval); cf Aronson, supranote 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'LCoNDucrpmbl., para. 21 (2007) (using same language).

14. See WASH. RULES OF PROF'L CONDucr 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 alwaysself-evident. See, e.g., WASH. RULES OF PROF'L CONDUCr 1.3 cmt. 1 (changing term "zealous" to"diligent" without explanation).

16. WASH. RULES OF PROF'L CONDUCr pmbl., para. 23.17. Id. Why the drafters chose the term "reserved" instead of "deleted" is not explained in

the RPC.18. WSBABoARD OF GOvERNORs, supra note 7.

19. Id.

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20governing lawyers' duty to report misconduct by other members of the bar. ModelRule 8.3 provides that when a lawyer knows of a lawyer or judge's violation of anethical rule, and that violation "raises a substantial question" about the lawyer's"honesty, trustworthiness or fitness as a lawyer,' 2 1 or the judge's "fitness for office," 22

the lawyer "shall inform" the relevant professional authority.23 Although 2006 RPC8.3 similarly encourages Washington lawyers to report ethical misconduct by lawyersand judges, it substitutes "should inform" for the Model Rule's "shall inform."2 4 The2006 RPC 8.3 thus remains an aspirational ethical standard-as RPC 8.3 was underthe 1985 RPC25-rather than the mandatory imperative of Model Rule 8.3.26 Indeed,2006 RPC 8.3 definitively prioritizes client confidentiality over public knowledge ofethical misconduct,27 whereas Model Rule 8.3 authorizes lawyers to report such

28misconduct even if the report will disclose confidential information.Notwithstanding the importance of these and the many other 2006 amendments

29to the RPC, two provisions merit special attention: RPC 1.6, governing clientconfidentiality, and RPC 3.3, respecting lawyer candor to tribunals. In particular,RPC 1.6 underwent a substantial overhaul and now incorporates not only important

20. WASH. RULES OF PROF'L CONDUCT R. 8.3.21. MODEL RULES OF PROF'L CONDucr R. 8.3(a) (2007).

22. Id. R 8.3(b).23. Id R. 8.3(a)-(b).24. WASH. RULES OF PROF'L CONDucr R. 8.3(a); MODEL RULES OF PROF'L CONDuCr R.

8.3(a).25. See Ende, supra note 1.26. Cf WASH. RULES OF PROF'L CoNDuCr pmbl., para. 14; MODEL RULES OF PROF'L

CoNDUcT pmbl., para. 14 (highlighting, respectively, that use of "shall" represents an ethical"imperativef-," whereas "[m]any of the Comments use the term 'should,"' which does "not addobligations 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 notpermit a lawyer to report the professional misconduct of another lawyer or a judge to the appropriateauthority if doing so would require the lawyer to disclose information otherwise protected by Rule1.6") (emphasis added).

28. See MODEL RULES OF PROF'L CONDUCT R. 8.3(c) (providing that "[t]his Rule does notrequire disclosure of information otherwise protected by Rule 1.6.") (emphasis added). The WSBAhad 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 ruleproposed by the WSBA. See also Ende, supra note 1, at 15 (noting that even "[t]hough the Board ofGovemors had recommended adoption of the Model Rule, .. . the [Washington] Supreme Courtopted to retain Washington's longstanding approach, which encourages but does not require suchreporting").

29. See generally THOMAS ANDREws, WASHINGTON RULES OF PROFESSIONAL CONDUCT ASADOPTED BY THE STATE SUPREME COURT (2006),http://wsba.orglawyers/groups/ethics2003/wprcfinalules.pdf (detailing, in a 211-page report, thecomparison of the 2006 RPC with the Model Rules).

30. WASH. RULESOF PROF'LCoNDucrR. 1.6, R. 3.3.

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Model Rule provisions, but also Washington-specific ethical obligations that everylawyer must know and weigh carefully when representing clients.

A more complete understanding of 2006 RPC 1.6 and 3.3, however, requiresconsideration of RPC 1.3. 31 Although modified from Model Rule 1.3 by only asingle word in one Comment, the revised RPC 1.3 may reveal the WSBA andWashington Supreme Court's broader vision for ethical lawyer conduct. The rest ofthe 2006 RPC, including RPC 1.6 and 3.3, accordingly should be evaluated andinterpreted in light of this broader vision.

mII. RULE 1.3: DILIGENCE

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

A lawyer shall act with reasonable diligence andpromptness in representinga client.33

Nevertheless, in Comment 1 to RPC 1.3, the Washington Supreme Courtreplaced "zeal in advocacy" under the Model Rules with "diligence in advocacy" todescribe lawyers' professional duty in representing client or cause. 34 This purposefulchange in word choice is not explained in 2006 RPC 1.3 or in Comment 1 itself Butthis change to RPC 1.3 Comment 1 strongly resembles changes to the RPCPreamble, which were proposed and explained by the WSBA Board of Governors.This modification to the Preamble may inform an understanding of the WashingtonSupreme 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 RPCPreamble broadly defines the functions, responsibilities, and priorities of lawyers.

36 37 3RPC Preamble paragraphs 2, 8, and 9,38 were changed, however, from the Model

31. IdRl 1.3.32. Id.33. MODEL RULES OF PROF'L CONDUCr 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 theWash. Supreme Court, Rule 1.3 Comments,http://www.wsba.org/lawyers/groups/ethics2003/1.3_comment.htm (last visited Oct 20, 2007)(retaining the fill Model Rule text in Comment 1 proposed by the WSBA, including the "zeal inadvocacy" language).

35. See WASH. RULESOFPROF'LCONDUCrR. 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 theclient's legal rights and obligations and explains their practical implications. As advocate, a lawyerconscientiously and ardently asserts the client's position under the rules of the adversary system. Asnegotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of

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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 theWSBA Board of Governors' revisions to the Ethics 2003 Committee'srecommendations, 39 the Board of Governors explained this change to "conscientiousand ardent" in the Preamble: "Owing to its etymology, the word "zealous" in thiscontext could inappropriately be interpreted to condone the extreme or fanaticalbehavior of a type that would be inconsistent with a lawyer's professionalobligations.A

'

The Board of Governors emphasized that "Washington has, since the adoption ofthe RPC in 1985, scrupulously avoided use of such terminology.' 4l Yet, despite theWSBA's scrupulous avoidance of "zeal" to describe appropriate lawyer advocacy, theEthics 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 veryethical rule that defines appropriate lawyer advocacy.42 Nor did the Board ofGovernors' report define "conscientious" and "ardent," and these terms are nowheredefined in the 2006 RPC.43

honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs andreporting about them to the client or to others.").

37. Id. pmbl., para. 8 (providing that "[a] lawyer's responsibilities as a representative ofclients, an officer of the legal system and a public citizen are usually harmonious. Thus, when anopposing party is well represented, a lawyer can be a conscientious and ardent advocate on behalf ofa client and at the same time assume that justice is being done. So also, a lawyer can be sure thatpreserving client confidences ordinarily serves the public interest because people are more likely toseek legal advice, and thereby heed their legal obligations, when they know their communicationswill be private.").

38. Id. pmbl., para. 9 (providing that "[i]n the nature of law practice, however, conflictingresponsibilities are encountered. Virtually all difficult ethical problems arise from conflict between alawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remainingan ethical person while earning a satisfactory living. The Rules of Professional Conduct oftenprescribe terms for resolving such conflicts. Within the framework of these Rules, however, manydifficult issues of professional discretion can arise. Such issues must be resolved through the exerciseof 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 aclient's legitimate interests, within the bounds of the law, while maintaining a professional, courteousand civil attitude toward all persons involved in the legal system.").

39. See WSBA BD. OF GOvERNORs, BOARD OF GOVERNORS' REvISIONS TO ETHIcs 2003

COMMrITEE RECOMMENDATIONS (2004), http://wsba.org/lawyers/groups/ethics2003/boardofgovemnorsrevisionswithcomments.doc.

40. Id. at 5; see also WASH. RULES OF PROF'L CONDUCr pmbl., para. 9.

41. WSBABD. OF GOVERNORS, supra note 39, at 5.

42. See WSBA-Ethics 2003 Comm. Rules as Proposed to the Wash. Supreme Court, Rule1.3 Comments, supra note 34.

43. AMERICAN HERITAGE DICTnONARY, 72, 296 (3d College ed. 1993), defines

"conscientious" as "[gluided by or in accordance with the dictates of conscience," and defines"ardent" as "[d]isplaying or characterized by strong enthusiasm or devotion; fervent."

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Many lawyers may perceive little practical difference between "conscientiousand 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 termin the Model Rules Preamble. And, the Washington Supreme Court's parallelrejection of "zeal" in Comment I to RPC 1.3 indicates the court's similar concern thatin this context too, "zeal in advocacy" as an ethical norm "could inappropriately beinterpreted to condone the extreme or fanatical behavior of a type that would beinconsistent with a lawyer's professional obligations. '"4 This textual change to 2006RPC 1.3 Comment 1 consequently signals a firm rejection in Washington of thetraditional "zealous advocacy" model.

The traditional duty to advocate "zealously" has been viewed as a "hallmark ofattomey-client relationships, ' 45 and reflects the professional conception that "[a]nadvocate, in the discharge of his duty, knows but one person in all the world, and thatperson is his client.' 46 A lawyer therefore was expected to "represent [a] clientzealously within the bounds of the law.'' 7 This partisan approach to advocacy still isdefended "as instrumental in protecting client autonomy and in nurturing clientloyalty and trust,'48 and many contemporary courts "generally accept the principlethat lawyers have a duty to zealously represent their clients.' 9

The zealous advocacy model, however, has increasingly become associated with"Rambo" lawyer tactics,50 where "victory in litigation justifies any conduct,"51 up toand including a "'scorched earth' policy.' 52 These "Rambo" lawyer tactics are seen as

44. See WSBABD. OF GOVERNORS, supra note 39, at 5.45. Alexis Anderson, Lynn Barenberg & Paul R. Tremblay, Professional Ethics in

Interdisciplinwy 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 RESPONSmILITY Canon 7 (1969); see also Anderson,Barenberg & Tremblay, supra note 45, at 669 (discussing different ethical codes that have expresslymandated 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 Floridaopinion, a 1999 Indiana opinion, and a 1997 Ohio opinion, all explicitly embracing the "zealousadvocacy" 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 Nagomey, Note, A NobleProfession? 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 usedthe 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 intoNew Bottles Revisited, 18 Hous. J. INr'L L. 817, 817-18 (1996).

52. O'Hara, supra note 50, at 968.

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contributing to a damaged public perception of the legal profession, and to a markeddecrease in professional civility.53 More significantly, "[a]dvocates' zeal can alsoblind them to their other ethical obligations or cause them to violate otherprofessional duties. ' 54

The WSBA Board of Governors' expressed concern in the RPC Preamble overthe "extreme or fanatical [lawyer] behavior of a type that would be inconsistent witha lawyer's professional obligations," 55 aligns neatly with these criticisms of thezealous advocacy model. 2006 RPC 1.3 Comment 1 does not indicate that theWashington Supreme Court had any different concern for "zeal" in mind when itsubstituted "diligence" for "zeal." Rather, 2006 RPC 1.3 Comment 1 and the RPCPreamble 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 approachto lawyering associated with the more aggressive iterations of the zealous advocacymodel. The ethical message of the 2006 RPC instead is one of balance: lawyersshould balance their obligation to advocate "ardently" and "diligently" with a broadersense of "conscience."

This type of professional balance would appear to draw at least implicitly on the"comprehensive law movement," 56 or more specifically, the "therapeuticjurisprudence" movement.57 Advocates of therapeutic jurisprudence explain it as "aperspective that regards the law as a social force that produces behaviors andconsequences.., and wants us to see whether the law can be made or applied in amore therapeutic way."" Born in about 1990,' 9 therapeutic jurisprudence prioritizes

60an "ethic of care" in lawyers' practice, 0 and "focuses on the extent to which the law

53. See Nagomey, supra note 50, at 815-16 (discussing studies revealing increasinglynegative 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 hasdeveloped 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 'tripartitecrisis' in the legal profession of deprofessionalism, low public opinion of lawyers, and lawyerdistress").

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 Justiceand 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 listingauthorities).

57. See generally International Network on Therapeutic Jurisprudence,http://www.law.aizona.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.

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may enhance or inhibit the well-being of those who are affected by it."6 1 This holisticapproach 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 devastationthat can result from traditional adversarial litigation. ' 63

The resulting practice philosophies have varied,64 but certain broad-levelprinciples remain constant: lawyers should examine their practice through a

therapeutic lens, 65 through which lawyers seek to minimize harm and optimizehuman wellbeing.66 While this approach "may initially focus on the wellbeing of theindividual client at hand, [it] often seek[s] to preserve or enhance the wellbeing of allof the individuals involved in the matter.'6 7 "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 1.3Comment 1 does not mandate therapeutic jurisprudence as the ethical norm inWashington State. And, nothing in the 2006 RPC indicates that the WSBA orWashington Supreme Court intended to cramp lawyer practice styles to that degree.

Indeed, the more aggressive visions of therapeutic advocacy 69 have been criticizedsharply as too paternalistic of clients, compromising client autonomy for grander-orsimply lawyer-notions of justice and "best" outcomes, and damaging to our well-tested adversarial model of dispute resolution. 70

61. Susan L. Brooks, Using Therapeutic Jurisprudence to Build Effective Relationships withStudents, Clients and Communities, 13 CuNICAL L. REV. 213, 216 (2006).

62. Daicoff, supra note 53, at 4.63. Id. at8.64. 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 normativeframework," but rather "sets up a line of inquiry").

66. See Diacoff, supra note 53, at 7-8 (explaining that "the comprehensive law movementseek[s] legal solutions that make things better, or at least not worse, for the people involved in thelegal matter," and "explicitly or implicitly attempt[s] to optimize the psychological and emotionalwellbeing 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 athttp://www.allbusiness.com/legal/3587312-1 .htm.

69. See, e.g., Robin Steinberg & David Feige, Cultural Revolution: Transforming the Public

Defender' Office, 29 N.YU. REv. L. & Soc. CHANGE 123, 125, 131 (2004) (advocating holistic

advocacy as an institutional public defender model, and arguing that a holistic public defender officeshould 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

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Yet, a "therapeutic" perspective may bring the intended notion of"conscientious" advocacy into sharper focus, and more fully reveal the professionalbalance that the WSBA and Washington Supreme Court had in mind when theydirected Washington lawyers to orient themselves to diligence and not zeal-abalance between a lawyer's outcome-centered professional interests and his or herbroader social, legal and client obligations. This refined ethical balance in turn shouldinform many of the other 2006 amendments to the RPC, including the changes to therules 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 someof the most significant amendments in 2006 of all the RPC. 71 The 1985 version of

Institutional Role, 30 N.YU. REv. L. & SOC. CHANGE 637 (2006); Tamar M. Meekins, "SpecializedJustice": The Over-Emergence of Specialty Courts and the Threat of a New Criminal DefenseParadigm, 40 SUFFOLK U. L. REV. 1 (2006); Mae C. Quinn, An RSVP to Professor Wexlers WarmTherapeutic 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 toCounsel, 31 AM. J. CRIM. L. 367, 426-27 (2004) (recognizing the risk of paternalism inherent inholistic advocacy, although arguing that "paternalism is a good thing... when the professional is infact 'correct'); see David B. Wexler, Not Such a Party Pooper: An Attempt to Accommodate (Manyol) Professor Quinn v Concerns about Therapeutic Jurisprudence Criminal Defense Lawyering, 48B.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 authorizedin order to carry out the representation or the disclosure is permitted byparagraph (b).

b) A lawyer to the extent the lawyer reasonably believes necessary:

1) shall reveal information relating to the representation of a client toprevent reasonably certain death or substantial bodily harm;

2) may reveal information relating to the representation of a client toprevent the client from committing a crime;

3) may reveal information relating to the representation of a client toprevent, mitigate or rectify substantial injury to the financial interestsor property of another that is reasonably certain to result or hasresulted from the client's commission of a crime or fraud infurtherance of which the client has used the lawyer's services;

4) may reveal information relating to the representation of a client tosecure legal advice about the lawyer's compliance with these Rules;

5) may reveal information relating to the representation of a client toestablish a claim or defense on behalf of the lawyer in a controversybetween the lawyer and the client, to establish a defense to acriminal charge or civil claim against the lawyer based upon conduct

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12RPC 1.6 had varied substantially from the current Model Rule 1.6. The 2006amendments to RPC 1.6 retained a key aspect of 1985 RPC 1.6, but also adopted

in which the client was involved, or to respond to allegations in anyproceeding concerning the lawyer's representation of the client;

6) may reveal information relating to the representation of a client tocomply with a court order, or

7) may reveal information relating to the representation of a client toinform a tribunal about any client's breach of fiduciary responsibilitywhen the client is serving as a court-appointed fiduciary such as aguardian, 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 CONDUCr 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 disclosuresthat are impliedly authorized in order to carry out the representation, andexcept as stated in section (b);

(b) A lawyer may reveal such confidences or secrets to the extent the lawyerreasonably 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 toallegations in any proceeding concerning the lawyer's representationof 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 impliedlyauthorized in order to carry out the representation or the disclosure ispermitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client tothe 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 isreasonably certain to result in substantial injury to the financialinterests or property of another and in furtherance of which the clienthas used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financialinterests or property of another that is reasonably certain to result orhas resulted from the client's commission of a crime or fraud infurtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with theseRules;

(5) to establish a claim or defense on behalf of the lawyer in acontroversy between the lawyer and the client, to establish a defenseto a criminal charge or civil claim against the lawyer based upon

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several components of Model Rule 1.6. Additionally, the 2006 amendments imposeda significant mandatory ethical duty not present in either the 1985 RPC 1.6 or ModelRule 1.6. A careful analysis of these changes to the rules of confidentiality thereforeis required.

A. Confidentiality

"Confidentiality is the bedrock principle of legal ethics,' '73 and it traditionally isdefended as "necessary 'to encourage full and frank communication between lawyersand their clients.' 74 Model Rule 1.6 reflects a modem trend to expand the scope ofthe information that lawyers must keep confidential,75 defining confidentialitybroadly to protect any "information relating to the representation of a client."76 1985RPC 1.6(a) did not extend confidentiality quite so far, protecting only "confidences"and "secrets., 77 A "confidence" meant information subject to attorney-clientprivilege, 78 and "secret" referred to "other information gained in the professionalrelationship that the client has requested be held inviolate or the disclosure of whichwould 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

conduct in which the client was involved, or to respond toallegations in any proceeding concerning the lawyer's representationof the client; or

(6) to comply with other law or a court order.73. Daniel R. Fischel, Lawyers and Confidentiality, 65 U. Ci. L. REv. 1, 1 (1998), reprinted

in GEORGE M. COHEN & SUsAN P. KONIAK, FOuNDAnONs 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 CONDucr R. 1.6 cmt. 2 (2007) (explaining that confidentiality "contributesto the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged toseek legal assistance and to communicate fully and franikly with the lawyer even as to embarrassingor legally damaging subject matter"); but cf FISCHEL, supra note 73, at 148 (arguing that "thisstandard justification, although repeated endlessly, is empty.... [C]onfidentiality benefits lawyersbecause it increases the demand for legal services. The legal profession, not clients or society as awhole, 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 thejustifications for confidentiality duty).

75. See FiscHtEL, supra note 73, at 154-55 (discussing evolution of confidentiality rulesincluded under the different ABA Codes over the years, and observing that "[a]ttomeys' obligationsto keep information confidential... have been steadily expanding in scope in recent decades").

76. MODEL RULES OF PROF'L CONDUCr 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).

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broadly" and "includes, but is not necessarily limited to, confidences and secrets.' 80

Under 2006 RPC 1.6, therefore, Washington lawyers should not define clientconfidentiality by whether information is harmful to the client or negative in nature,by whether the client has requested non-disclosure, or even by whether theinformation comes directly from the client. Rather, so long as the information relatesto the lawyer's representation of the client, the lawyer "shall not" reveal theinformation without express or implied client consent, or as required or permitted byone of the disclosure exceptions in 2006 RPC 1.6(b)." Although 1985 RPC 1.6(b)also provided for exceptions to the duty of confidentiality, these exceptions wereamended 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 confidentialinformation in several circumstances involving client misconduct or a threat of harmto others." 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 acrime." 84 2006 RPC 1.6(b) was revised more closely to resemble, but by no meanswholly to imitate, the disclosure provisions of Model Rule 1.6(b).85

80. WASH. RULESOFPROF'LCONDUCrR. 1.6 cmt. 19(2006).

81. Seeid. 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 confidentialinformation to comply with "other law." The authorized disclosure of confidential informationwithout express or implied client consent, therefore, would appear limited solely to the circumstancesprovided by the Washington RPC); id R. 1.2(d), R. 3.3, R. 4.1(b), R. 8.1 (requiting disclosure if notprohibited by RPC 1.6. Lawyers should note that disclosure of confidential information is authorizedby RPC provisions outside of RPC 1.6.); id. R. 1.13(c) (permitting disclosure even if not authorizedunder RPC 1.6). See generally WSBA ETHICS 2003 CONmMTEE, CoNHDENTL'Lrry SUBCOMMMEFiNAL REPORT app. 0 at 3-5, http://www.wsba.org/lawyers/groups/ethics2003/appendixddoc (listingtwenty reasons for Committee's rejection of Model Rule 1.6(b)(6)'s "other law" confidentialityexception).

83. MODEL RULES OF PROF'L CONDUCr R. 1.6(b) (2007).84. WASH. RULES OF PROF'LCONDUCT 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 confidentialinformation to comply with "other law." Under the 2006 RPC, therefore, disclosure is permittedsolely under the circumstances recognized by RPC themselves. The disclosure of confidentialinformation, however, is authorized by RPC provisions outside of RPC 1.6. See WASH. RULES OFPROF'L CONDUCT R. 1.2(d), R. 3.3, R. 4.1(b), R. 8.1 (all requiring disclosure if not prohibited by RPC1.6); id. R. 1.13(c) (permitting disclosure even if not authorized under RPC 1.6). See generallyWSBA Enncs 2003 COMMrrTEE, CONFiDENTLALITY SuBcOMmiTTEE FINAL REPORT app. 0 at 3-5,http://www.wsba.org/lawyers/groups/ethics2003/appendixd.doc (listing twenty reasons forCommittee's rejection of Model Rule 1.6(b)(6)'s "other law" confidentiality exception).

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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 fromcommitting a "crime." 86 Comment 20 to 2006 RPC 1.6 notes that this rule "issignificantly broader than the corresponding exception in the Model Rule," whichpermits disclosure of a client's crime or fraud only to prevent "substantial injury" tofinancial or property interests in furtherance of which the client has used the lawyer'sservices. 87 Under 2006 RPC 1.6(b)(2), by contrast, the client's crime need not proveof any particular magnitude or have any relationship to the lawyer's services; thelawyer need only reasonably believe that disclosure is necessary to prevent thecrime.88 Disclosure remains discretionary, however, so a lawyer will not violate theRPC by choosing not to disclose,89 and the RPC emphasize that the option ofdisclosure 'should not be carelessly invoked."' 90 In exercising this discretion,lawyers "may consider such factors as the nature of the lawyer's relationship with theclient and with those who might be injured by the client, the lawyer's owninvolvement in the transaction and factors that extenuate the conduct in question." 9 1

Although not contained in the Model Rules, 2006 RPC 1.6(b)(2)'s broad "anycrime" exception to confidentiality is shared by twenty-seven other states,92 so

86. See WSBA ETHICs 2003 COMMIrTEE, supra note 82, at 1-2 (unanimouslyrecommending that this provision be retained, noting a 13-0 vote).

87. See WASH. RULES OF PROF'L CoNDucr 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 toprevent a client fraud if the fraud does not amount to a crime. Cf MODEL RULE 1.0(d) and 2006 RPC1.0(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 orfraud in furtherance of which the lawyer's services had been used," and noting that such disclosurewas authorized under the pre-1985 code). The WSBA Ethics 2003 Committee and the Board ofGovernors had proposed adoption of Model Rule 1.6(b)(2) as RPC 1.6(b)(3), see WSBA ETHICS2003 COMMrrEE, SUGGESTED AMENDMENTS To RULES OF PROF'L CONDUCt 41,http://www.wsba.org/lawyers/groups/ethics2003/ethics2003suggestedrulesfinalspacedandformattedmarkup.doc); WSBA ETHCS 2003 COMMrITEE, supra note 82, at 2, but this provision did not find itsway into 2006 RPC 1.6.

89. See WASH. RULES OF PROF'L CONDUCT R. 1.6 cmt. 15 (providing that "[a] lawyer'sdecision 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. Ofthese states, Florida and Virginia require disclosure of confidential information to prevent "any

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Washington by no means stands alone by maintaining it. Importantly, this exceptionis solely forward-looking in nature: it permits disclosure of confidential informationonly to prevent a still unrealized wrong or harm from occurring. 93 Some jurisdictionslimit confidentiality exceptions to circumstances where the harm to be preventedremains unrealized, a policy choice to prioritize confidentiality when breaching itonly will reveal, not avert, a harm.94

Model Rule 1.6(b)(3) provides a limited exception to this forward-looking normby 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 clientcrime or fraud.95 This exception is restricted to cases where the client has used thelawyer's services in furtherance of that crime or fraud.9 6 2006 RPC 1.6(b)(3) adoptsthis exception, which empowers a lawyer to remedy past client harms that the lawyerunwittingly has aided.97

Interestingly, the WSBA Ethics 2003 Committee and the Board of Governorsproposed that Washington should reject this Model Rule provision, instead proposingadoption only of the Model Rule's forward-looking fraud disclosure provision inModel 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 wouldknow the steps to take," 99 as well as the "adverse impact this provision would have

crime." Id. See generally STEvEN GILLERS & ROY D. SIMON, REGULATION OF LAWYERS: STATUTESAND STANDARDS 83-88 (2007) (listing states that have, instead of a broad "any crime" disclosureprovision, adopted variations of Model Rule 1.6(b)(2), which limits this basis for disclosure ofconfidential information to substantial financial or property crimes and frauds in furtherance of whichthe client has used the lawyer's services).

93. WASH. RULES OF PROF'L CONDUCr 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 athttp://www.gabar.org/handbook/part ivaferjanuary_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 crnt. 7 (noting that when a client uses a lawyer's services to commit aserious crime or fraud, "[sluch a serious abuse of the lawyer-client relationship by the client forfeitsthe protection of this Rule").

97. Strangely, 2006 RPC 1.6 has "reserved," or deleted Model Rule Comment 8, thecomment 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 forrepresentation concerning that offense." Perhaps the Washington Supreme Court believed this caveatself-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 proposedrejection of Model Rule 1.6(b)(3), a recommendation the Washington Supreme Court ultimatelyrejected. See WSBA ETiCS 2003 COMMrrrEE, supra note 82, at 2.

98. See WSBA ETicS 2003 COMMrrTEE, supra note 82, at 2.99. Id.

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upon the client's willingness to communicate freely with the client's lawyer."100 Byan 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, andbecause the committee believed that these circumstance already adequately wereaddressed by the interaction between RPC 1.6(b)(2)'s "any crime" provision's andRPC 4. 1(b).' l

The Washington Supreme Court ultimately disagreed and adopted Model Rule1.6(b)(3)'s discretionary backward-looking disclosure provision as 2006 RPC1.6(b)(3). By adopting 2006 RPC 1.6(b)(3), Washington joins a growing crowd oftwenty-seven other jurisdictions that authorize backward-looking disclosure undercircumstances in line with Model Rule 1.6(b)(3).'0 2

If a lawyer elects to disclose confidential information under either 2006 RPC1.6(b)(2) or 2006 RPC 1.6(b)(3), the RPC, like the Model Rules, demand that thelawyer still endeavor to protect client confidentiality in the disclosure process.'0 3 Thelawyer may disclose confidential information "only to the extent the lawyerreasonably believes the disclosure is necessary to accomplish one of the purposes."']0 4

Any "disclosure adverse to the client's interest should be no greater than the lawyerreasonably believes necessary to accomplish the purpose,"' 1 5 and "should be made ina manner that limits access to the information to... persons having a need to knowit.' ' 10 6 Moreover, the lawyer should seek "protective orders or make otherarrangements minimizing the risk of avoidable disclosure."' 07

2. Mandatory Disclosure

Model Rule 1.6(b)(1) permits, but does not require, a lawyer to discloseconfidential information to the extent necessary to prevent reasonably certain death orsubstantial bodily harm.'0 8 Model Rule 1.6(b)(1)'s permissive authorization

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 avoidassisting 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 of2007, including: Arizona, Arkansas, Colorado, Connecticut, Delaware, the Disrict 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, Vuginia, and Wisconsin).

103. See WASH. RULEsOFPROF'LCoNDUCrR. 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'LCONDUCr R. 1.6(b)(1) (2007).

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represents the majority rule, 0 9 and reflects the judgment that for disciplinarypurposes, lawyers sit in the best position to evaluate and counsel their clients, and tojudge whether client confidentiality should yield to individual safety interests." 0

In surely the most controversial amendment to RPC 1.6, and perhaps to the RPCin their entirety, 2006 RPC 1.6(b)(1) dictates that "[a] lawyer to the extent the lawyerreasonably believes necessary . . . shall reveal information relating to therepresentation of a client to prevent reasonably certain death or substantial bodilyharm."' This mandatory reporting duty to prevent serious physical harm is theminority 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.' 12

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

Although the public interest is usually best served by a strict rule requiringlawyers to preserve the confidentiality of information relating to therepresentation of their clients ... Paragraph (b)(1) recognizes the overridingvalue of life and physical integrity .... 113

This mandatory reporting duty was much debated within the WSBA Ethics 2003Committee, 1 4 garnering only three votes in favor of it."15 2006 RPC 1.6(b)(1)

109. See MORGAN & ROTUNDA, supra note 92, at 148-55 (discussing and listing state rues).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 PracticingAttorneys?, 18 GEO. J. LEGAL ETHICS 881, 888-90 (2006) (analyzing the longer term normative rolethe 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 reasonablycertain death or substantial bodily harm, "the lawyer may consider such factors as the nature of thelawyer's relationship with the client and those who might be injured by the client, the lawyer's owninvolvement in the transaction and factors that extenuate the conduct in question," but making clearthat "[a] lawyer's decision not to disclose as permitted by paragraph (b) does not violate this Rule").

111. WASH. RULESOFPROF'LCONDUCTR. 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 ofProfessional Conduct, 55 DRAKE L. REV. 347, 399 & n.210 (2007).

113. WASH. RULESOFPROF'LCONDUCrR. 1.6 cmt. 6.

114. See WSBA ETHIcs 2003 COMMITTEE, supra note 82, at 5-6.; WSBA ETHICS 2003COMMITrEE, REPORT AND RECOMMENDATIONS OF THE SPECIAL COMMITTEE FOR EvALUATION OF THE

RULES OF PROFESSIONAL CONDUCT app. E at 33-60, (2004),

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remained a discretionary disclosure in the WSBA Board of Governors' report andrecommendation to the Washington Supreme Court. 116 This ethical duty thus comesdirectly from the Washington Supreme Court.

The theoretical debate over a mandatory disclosure duty in cases of threateneddeath or substantial bodily harm has been explored in great detail, 17 and will not berehashed here. The Washington Supreme Court has prioritized core individual safetyinterests over the confidentiality interests of clients, and weighty policyconsiderations justify this decision."18 A remaining concern with 2006 RPC1.6(b)(1)'s mandatory disclosure duty is instead pragmatic: that this disclosure dutymay do little to protect third parties from client violence, and ultimately it mayundermine this harm-reduction objective by decreasing the likelihood that lawyerswill detect and report credible threats of serious harm.

Bar disciplinary committees typically are comprised mostly of lawyers.' 19 Thelawyers 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

http://www.wsba.org/lawyers/groups/ethics2003/appendixe.doc.115. See WSBA ETHiCS 2003 CoMMrrrEE, supra note 82, at 5-6.116. See WSBAETRiCs2003 COMMrTEE, supra note 88, at41-51.117. 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) (examiningthe theoretical justifications for both discretionary and mandatory disclosure schemes, andconcluding after an empirical study of New Jersey lawyers that a mandatory rule does not appear toachieve its main objective of mitigating harm to others); Kevin E. Mohr, Californias Duty ofConfidentiality: Is It Time for a Life-Threatening Criminal Act Exception?, 39 SAN DIEGO L. REV.307, 327-52 (2002) (examining Califomia's strict confidentiality requirement and advocating for adeath or bodily harm exception, but as a discretionary rule rather than a mandatory rule); Harry 1.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 forconfidentiality, because a discretionary scheme would "invite the wolf to tend the flock"); RachelVogelstein, 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 thusModel Rule 1.6 should require disclosure to prevent serious harm); see also WSBA ETHICS 2003COMMITrEE, REPORT AND RECOMMENDATION OF THE SPECIAL COMMTEE FOR EvALUATION OF THE

RULES OF PROFESSIONAL CONDUCT, supra note 114, at 33-60 (presenting many of the arguments forand against a mandatory "death or substantial bodily harm" disclosure rule by members of theWSBA 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. EthicsComm., Formal Op. 91-18, at 2-6 (1991). Cf generally Richard Pliskin, The Ethics of Suicide, 137N.J. L.J. 749 (1994).

119. The WSBA Disciplinary Board, for example, "is a 14 member board of 10 lawyers and4 nonlawyers." WSBA-Disciplinary Board, http://www.wsba.org/lawyers/groups/dboard/defaultI .htm (last visited Oct. 17, 2007).

120. This point is illustrated by the WSBA Ethics 2003 Committee's recommendation thatthe Washington Supreme Court reject a mandatory disclosure duty in favor of retaining greater

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Moreover, while these committees often can pinpoint when a lawyer has mishandledclient funds or engaged in personally dishonest conduct, they know as well as anyother lawyer the difficulty of estimating a client's intent to engage in futuremisconduct clearly enough that the great principle of confidentiality should yield. 12 1

The natural instinct of disciplinary committees may be to extend lawyers the benefitof 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 thedearth of publicly reported lawyer sanctions in mandatory disclosure jurisdictions fornon-disclosure of a reasonably certain threat of death or substantial bodily harm. 122

An unenforced ethical rule quickly becomes an ineffectual rule at changing lawyerbehavior,123 and consequently a rule that accomplishes public relations objectivesmore 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 mayfrustrate the objective of harm reduction. Lack of training and education mayrepresent one of the major reasons why lawyers respond ineffectively to manyperceived threats of harm by a client.! 24 Absent a better sense of what to do, many

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 cfSarah Buel & Margaret Drew, Do Ask and Do Tell: Rethinking the Lawyer "s Duty to Warn inDomestic Violence Cases, 75 U. CN. L. REV. 447, 464 (2006) (arguing that "[l]awyers are competentto assess risk presented by their clients").

122. See Davalene Cooper, The Ethical Rules Lack Ethics: Tort Liability When a LawyerFails to Warn a Third Party of a Client s Threat to Cause Serious Physical Harm or Death, 36 IDAHOL. 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 myresearch assistants called the "ethical hotline" in Florida, a mandatory disclosure jurisdiction since1992. See FLA. RULES OF PROF'L CoNDucr 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 assistantasked the hotline staff person whether any record existed of a lawyer being sanctioned for failing todisclose confidential information necessary to prevent a threat of serious harm, and the staff personresponded 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 mandatorydisclosure duties has deprived them of substantive effect); Levin, supra note 117, at 128-31(concluding fr'om a survey of 1,950 New Jersey lawyers that nine years after New Jersey adopted amandatory disclosure duty in 1985, "many lawyers were not disclosing client confidences to preventwrongful acts, even when disclosure was necessary to prevent substantial harm to others... onlyabout half of those lawyers who were required to disclose... to prevent death or substantial bodilyharm had in fact made disclosure," and that "[v]irtumlly all of the lawyers who disclosed clientinformation . . . 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, andfinding 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

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lawyers simply will resort to the safe bet: avoid the subject as much as possible, andmaintain client confidentiality. 125 In discretionary disclosure jurisdictions, the Bar andcontinuing legal education market have a reason to provide a wide-range of trainingto help lawyers more effectively negotiate these complicated and delicate interactionswith clients. In a mandatory disclosure jurisdiction, however, such training andeducation is verboten, because lawyers have no discretion to exercise-they mustdisclose whenever they reasonably believe disclosure necessary to avert reasonablycertain harm. Combine the resulting lack of training and education with an under- ornon-enforced ethical rule, and the result is a net loss: lawyers with no practicalincentive to disclose client confidences with little or no training and education to helpthem resolve these difficult situations.

Ironically, this net loss to harm reduction may become even worse if themandatory disclosure duty instead is enforced by consistent lawyer sanctions forfailures to disclose. Once lawyer sanctions for non-disclosure are reported, manylawyers may respond by creating a "three wise monkeys"' 1

26 defense for themselves

by ensuring that they do not permit their professional relationships and conversationswith clients to develop to a point likely to put a lawyer on notice of such potentialdangers. More specifically, an enforced mandatory disclosure duty may deter lawyersfrom exploring a client's threat to determine whether the client is sincere or justblowing off steam, or from attempting to persuade a seemingly sincere client toabandon the threat. Instead, many lawyers will stop or change the conversation, leavethe room, issue a preemptive "don't go there" warning, or otherwise ensure that theirinteraction 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 thattriggers the mandatory disclosure duty. As a result, some lawyers simply willdisengage. This buried-head response naturally will undercut the harm-reductionobjective motivating the mandatory disclosure duty, since lawyers can disclose

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 cdty may

encourage lawyers not to disclose); Zacharias, supra note 74, at 376-97 (questioning efficacy ofconfidentiality rules on an empirical basis); Joshua James Sears, Comment, Blood on Our Hands:The Failure of Rule 1.6 to Protect Third Parties from ,olent Clients, and the Movement toward aCommon-Law Solution, 39 IDAHO L. REv. 451, 462-65 (2003) (arguing that disclosure rules actuallymay serve as a deterrent to attomey disclosure).

126. See Wikipedia.com, Three Wise Monkeys,http://en.wikipedia.org/wikiffhree_wisemonkeys (last visited Oct. 18, 2007) (explaining that thethree-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 beinvolved in a situation, or someone turning a willful blind eye to the immorality of an act he isinvolved in").

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potential harm only if they see it. Lawyers who go out of their way not to seepotential harm will have nothing to disclose.' 27

By contrast, a discretionary disclosure duty, such as Model Rule 1.6(b)(1),encourages lawyers to have the sort of professional relationships and conversationsthat more likely will alert the lawyer to such a threat, because lawyers will know thatthey ethically retain a choice. 128 Two harm-reduction benefits may result. First,lawyers more likely will employ their skills of negotiation and persuasion with clientsto deter them from acting on their threat.' 29 Second, lawyers more likely will confirmfor themselves the genuine threats of serious physical harm, in response to whichmany lawyers likely will opt to report.130 A benefit to confidentiality interests alsomay follow from a discretionary rule: by having the confidence to inquire further intoperceived client threats, lawyers more accurately can dismiss empty threats as emptythreats, thus decreasing the rate of unnecessary disclosure of confidential information.

Perhaps these pragmatic concerns will prove overstated or wholly off-base. Buteven if ultimately not, the WSBA and Washington Supreme Court are unlikely torevisit this ethical mandate any time soon without first giving its efficacy ameaningful opportunity to be assessed. Consequently, lawyers must begin evaluatinghow to conform their professional relationships with individual clients to this newethical duty. This evaluation necessitates consideration of several critical questions

127. Cf. Levine, supra note 117, at 149 (observing that a mandatory disclosure duty actuallymay undermine the functional utility of the rule by encouraging lawyers not to disclose to preservetheir relationships with clients). The corresponding nile in Virginia suggests that the judiciary iscognizant of this reality. See VA. RuLEs OF PROF'L CONDUCT R. 1.6(c)(1) (2000). This rule attemptsto address the issue by broadly mandating disclosure of a client's intent to commit "a crime," butprovides that "before revealing such information, the attorney shall, where feasible ... urge the clientnot to commit the crime, and advise the client that the attorney must reveal the client's criminalintention 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 toobviate the need for disclosure." WASH. RULES OF PROF'L CONDUCT R. 1.6 cmt. 14 (2006). Theobligation to disclose under RPC 1.6 if this conversation goes south may motivate many lawyers todeem this effort "impracticable."

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

129. Cf Levin, supra note 117, at 140-42 (noting the instinct of lawyers to use theirnegotiation 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 harmat a much higher rate than client financial harms); Zacharias, supra note 74, at 392 (finding thatlawyers 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 thatlawyer ethics will produce higher disclosure rates with threats of serious physical harm than threats offinancial harm). These two harm-reduction benefits would more likely be realized because of theenhanced range of harm-reduction education that openly could be delivered to lawyers under adiscretionary disclosure rule. Cf id at 892 (arguing that to effectively achieve a harm-reductionobjective, the legal community "must approach this problem from different angles," includingongoing lawyer education).

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raised by 2006 RPC 1.6(b)(1)'s mandatory disclosure duty: When precisely is theduty 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 isrequired to disclose? Will lawyers who fail to disclose when required be liable in tortto affected third parties under a Tarasofftheory?131 The following sections examineeach of these questions.

a. When is the duty to report triggered?

2006 RPC 1.6(b)(1) mandates disclosure of confidential information in a broadrange of circumstances involving threats of death or substantial bodily harm.'32 Ofthe twelve other states that impose a mandatory disclosure duty in cases of threatenedserious harm, only three-Florida, North Dakota, and Tennessee-impose a duty todisclose in as broad of circumstances as Washington's disclosure duty.

2006 RPC 1.6(b)(1) requires a lawyer to disclose confidential information whenthe lawyer "reasonably believes" that disclosure is necessary to prevent "reasonablycertain death or substantial bodily harm."'13 4 Comment 6 to 2006 RPC 1.6 clarifiesthat "[s]uch harm is reasonably certain to occur if it will be suffered imminently or ifthere is a present and substantial threat that a person will suffer such harm at a laterdate if the lawyer fails to take action necessary to eliminate the threat."' 35 The latterclause makes clear that a lawyer must disclose even a non-imminent threat of harm ifthe lawyer nevertheless believes the disclosure reasonably necessary to avert a futureharm. Three of the additional twelve states that mandate disclosure to prevent deathor substantial bodily harm limit that duty to cases where the threatened harm isimminent.

116

131. Lawyers also will need to resolve for themselves how they will communicate thisdisclosure duty to clients and structure a professional relationship around it. Precise answers to thesequestions 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 willvary widely from lawyer to lawyer and from client to client. Some lawyers may decide to advise allnew clients of the mandatory duty; other lawyers may advise clients of the duty only when thelawyer perceives he or she may be subject to it; and other lawyers may choose a variety ofapproaches that will depend on the unique case or the client. Ultimately, however, these highlyindividualized practice choices should incorporate many, if not all, of the questions to be addressed inthe following sections.

132. Id Rl 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. RULESOFPROF'LCoNDuCT 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 CONDuCr R. 32:1.6(b)-(c)(2005) (permitting disclosure in cases on non-imminent harm, but mandating disclosure "to theextent the lawyer reasonably believes necessary to prevent imminent death of substantial bodily

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

[A] lawyer who knows that a client has accidentally discharged toxic waste intoa town's water supply must reveal this information to the authorities if there is apresent and substantial risk that a person who drinks the water will contract alife-threatening or debilitating disease and the lawyer's disclosure is necessary toeliminate the threat or reduce the number of victims. 13 7

This hypothetical illustration further reveals 2006 RPC 1.6(b)(1)'s breadth. To triggerthe duty to disclose, the threatened harm need not constitute a crime or even beintended by the client. Rather, the duty is triggered even if the threatened death orsubstantial bodily harm would be caused by non-criminal, even accidental conduct,so long as the lawyer reasonably believes that disclosure will avert a reasonablycertain threat of harm.' 38 By contrast, eight of the twelve other states imposing amandatory disclosure duty expressly limit that duty to cases of criminal conduct.' 39

Moreover, a disclosure duty such as the duty in 2006 RPC 1.6(b)(1) naturallybrings to mind cases where the client says, in one form or another, "I'm going to killsomeone." But, the language of RPC 1.6 does not limit the duty to disclose to caseswhen a client explicitly threatens death or serious bodily harm. "4 RPC 1.6 Comment6 confirms this reading of RPC 1.6, as the client in the hypothetical case presented inComment 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

harm"); N.M. RULES OF PROF'L CoNDucT R. 16-106(B) (2000) (limiting discretionary disclosureduty to cases of "imminent death or substantial bodily harm").

137. WASH.RULEsOFPROF'LCONDUCTR. 1.6cmt. 6.

138. Id139. See ARIz. RULES OF PROF'L CONDUCT R. 1.6(b) (2007); CONN. RULES OF PROF'L

CONDUCr R. 1.6(b) (2007); Wis. RULES OF PROF'L CONDUCT R- FOR ATrORNEYS 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'sintent to commit "a crime"); State Bar of Ariz. Ethics Comm., supra note 118, at 2-6 (evaluatinginquiry under Arizona's mandatory disclosure duty of whether a lawyer must reveal a client's statedintention to commit suicide, and concluding that while "suicide clearly is an act involving 'death orsubstantial bodily harm,"' Arizona law did not make clear whether suicide constituted a crime, andthus "a strict literal reading of the confidentiality rule and its exceptions would lead us to concludethat the attorney could not, under any circumstances, reveal his client's intention to commt suicide");

see also Pliskin, supra note 118 (exploring a lawyer's decision not to reveal client's intent to commitsuicide because, to the lawyer's best knowledge, which included a hypothetical consultation with aprosecutor, suicide did not constitute a crime in New Jersey).

140. WASH. RULESOFPROF'LCoNDucT R 1.6(b)(2)-(7).

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information available to the lawyer.141 Consequently, 2006 RPC 1.6(b)(1)'sdisclosure duty may be triggered if the lawyer reasonably infers a threat of death orsubstantial 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)'sdisclosure duty is that nothing limits it to cases where the client presents the threat ofharm. On the contrary, under the plain text of RPC 1.6(b)(1), if the lawyer ispresented with a reasonably certain threat of death or substantial bodily harm fromany source-the client or anyone or anything else-the lawyer must disclose anyconfidential information in his or her possession necessary to prevent that harm.Consider, for example, a client who reveals that a co-defendant or another individualmay kill or seriously harm a witness or cooperating accomplice. If the lawyerbelieves this harm is reasonably certain to occur, the lawyer must disclose the client'sconfidential revelation if necessary to prevent this harm. This duty applies even if thelawyer has no reasonable basis to suspect the client of involvement in the threatenedharm, and instead reasonably believes that the client only has advised the lawyer ofwhat the client has learned from another source. In another example, if a lawyer'sclient is a victim of domestic violence who reveals in confidence that her abusivehusband 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 toprevent the future abuse.14 2 Eight of the twelve other states mandating disclosure, bycontrast, limit that duty to cases where the client personally presents the threat ofharm.

143

Only Florida, North Dakota, and Tennessee have parallel mandatory disclosureprovisions as broad as Washington's duty under 2006 RPC 1.6(b)(1), where lawyersmust disclose non-imminent and non-criminal threats of death or substantial bodilyharm, even if the threat is not created by the client, so long as disclosure of the client'sconfidential information will prevent a reasonably certain threat of serious harm.'"

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 'iolence, 79 TENM. 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 ChildAbuse, 36 N.M. L. REv. 125, 148-54 (2006) (discussing

potential duty of lawyers who represent domestic violence victims to report abuse by their partnersunder child abuse mandatory reporter statutes).

143. See ARiz. RULES OF PROF'L CONDUCr 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 CoNDuCr R. 1.6(b)(1)-(2); TEX. DISCIPLINARY RULES OF

PROF'L CONDUCr R. 1.05(e); VT. RULES OF PROF'L CoNDucT R. 1.6(b); Wis. RULES OF PROF'LCoNDuCT 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

CoNDuCr R. 1.6(b)-(c); VA. RULES OF PROF'L CONDuCT R. 1.6(c)(1) (2007); WIS. RULES OF PROF'L

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This approach to mandatory disclosure appears strongly to prioritize harm preventionas the overriding policy aim justifying disclosure, independent of any wrongdoing bythe holder of the confidentiality interest.

The breadth of this duty, however, does not mean that Washington lawyersshould have an overly quick trigger finger for disclosing confidential information. Onthe contrary, 2006 RPC 1.6 Comment 23 cautions that "exceptions to the general ruleprohibiting unauthorized disclosure of information relating to the representation'should not be carelessly invoked.' 145 These potentially competing directives placelawyers in a rather tenuous predicament: disclose too precipitously and violate oneethical duty-confidentiality a6-but guard confidentiality too closely and violateanother ethical duty-to protect third parties from reasonably certain threats ofserious physical harm. In the end, lawyers may need to seek refuge in the RPCPreamble's admonition that "[t]he Rules of Professional Conduct are rules ofreason,"147 and expect that so long as reasonable lawyers could disagree about themeaning and import of an alleged threat, a lawyer's election of non-disclosure willnot 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 areasonably certain threat of death or substantial bodily harm, the lawyer first mayattempt preventative action prior to disclosing: "Where practicable, the lawyer shouldfirst seek to persuade the client to take suitable action to obviate the need fordisclosure." 149 The use of "obviate" necessarily references an already sufficient threatthat is eliminated by subsequent action, 150 not simply a threat that has not yet crossed

CONDUCr R. FOR ATTORNEYS 20:1.6(b)-(c) (imposing potentially even broader disclosure duties, asthese states require a lawyer to disclose confidential information necessary to prevent a client fromcommitting "a crime").

145. WASH. RuLEs OF PROF'L CoNDucr 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 fordisclosing confidential client information when the disclosure was designed to reveal misconduct bya sitting judge).

147. WASH. RULESOFPROF'LCONDuCr 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 clientcommitted suicide, and concluding that in light of the lawyer's judgment not to take the threatseriously, the lawyer was not required to disclose the client's threat). Of course, the reasonablenessstandards in 2006 RPC 1.6(b)(1) could be interpreted to mean that so long as a reasonable lawyercould have perceived a reasonably certain threat of death or substantial bodily harm, the duty istriggered. In that case, the fact that other reasonable lawyers might disagree would not protect thenon-reporting lawyer from ethical liability.

149. WASH. RULESOFPROF'LCONDUCTR. 1.6cmt. 14.

150. THE AMERICAN HERITAGE DICIONARY 961 (Joseph P. Pickett, ed., Houghton Mifflin

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the line into "reasonably certain." Thus, a lawyer may bring his or her skills ofpersuasion to bear on a client, and if successful at negating the previous threat, thelawyer seemingly need not disclose it.

If the client will not obviate the need for disclosure, the lawyer must disclose anyconfidential information in his or her possession necessary to prevent the harm. Thisabsolute rule leaves lawyers in a difficult position in cases where they face competingharms, a circumstance that will likely arise in cases where the client does notpersonally present the threat of serious harm.

For example, consider a lawyer who represents a domestic violence victim whoconfides to her lawyer that she has returned to her chronically abusive spouse inviolation of an order of protection forbidding him from contacting her. If the lawyerreasonably believes that this information demonstrates a reasonably certain threat ofserious harm to the client, the lawyer must disclose the confidential informationnecessary to prevent that harm. Yet, this disclosure may create additional threats ofharm to the client herself-when confronted with the client's disclosure and itsramifications, the husband may assault or otherwise harm the client for revealing thisinformation 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 oreven to the disclosing lawyer him or herself In these circumstances, "significantpublic policy concems suggest that attomeys should not be held responsible forfailing to act for the protection of their victim-client."' 51

This problem of competing harms does not arise only in cases where the clientremains free of responsibility for the threatened harm, or where the competing harmsinvolve comparable physical harms. For example, lawyers not uncommonly learn ofan HIV-positive client's medical condition in the course of representing the client. Ifthe lawyer learns that the client is HIV-positive and reasonably believes that the clientwill expose his or her sexual partner or another individual-even under non-criminalcircumstances' 5 2-2006 RPC 1.6(b)(1) would appear to require the lawyer todisclose any confidential information necessary to avert that threat. Yet, thisdisclosure may violate medical privacy laws,153 pitting the lawyer's ethicalobligations against other significant legal obligations.

Co. 4th ed. 2002) (defining "obviate" as "[t]o anticipate and dispose of effectively; renderunnessesary").

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

152. WASH. RULESOFPROF'LCONDUCrR. 1.6cmt. 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").

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A discretionary disclosure rule would permit a lawyer to consider the potentialcompeting harms of disclosure when deciding whether to disclose. 2006 RPC1.6(b)(1)'s mandatory rule provides no such options. Washington lawyers perhapswould benefit from the inclusion of a safety-valve exception to presumptivedisclosure in cases of competing harms, or at least from some ethical guidance in theRPC itself or an explanatory Comment clarifying whether lawyers still must discloseeven when a competing harm that is "reasonably certain" to result from disclosureequals or outweighs the harm of non-disclosure.

In mandating disclosure, 2006 RPC 1.6(b)(1) does not balance confidentialityinterests against law enforcement interests. Rather, RPC 1.6(b)(1) balancesconfidentiality interests against the public interest in individual safety.' 54 RPC1.6(b)(1) thus mandates disclosure-and RPC 1.6 as a whole permits disclosure-only to the extent reasonably necessary to prevent the threatened hann, not to ensureprosecution of the client. 2006 RPC 1.6 Comment 23 emphasizes this point bydirecting "lawyer[s to] make every effort practicable to... limit disclosure to thosehaving the need to know it, and to obtain protective orders or make otherarrangements minimizing the risk of avoidable disclosure.' ' 155 Comment 14 adds:"Paragraph (b) permits disclosure only to the extent the lawyer reasonably believesthe disclosure is necessary to accomplish one of the purposes specified."' ' 56

A lawyer therefore need not disclose a client's threat directly to law enforcementif disclosure to another source will avert the harm.' 57 Indeed, when a lawyer ispresented 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 clientconfidentiality while preventing the threatened harm, so long as that creative balanceprioritizes harm prevention.' 58 As another mandatory disclosure jurisdiction hasopined: "[T]he nature and extent of such disclosure is a matter for the attomey'sjudgment and discretion.... A reasonable decision and action by an attorney in sucha difficult situation should not be the subject of disciplinary action."15 9 The structure

154. Cf WASH. RuLEs OF PROF'L CoNDucr R. 1.6 cmt. 6 (explaining that "[p]aragraph (b)(1)recognizes the overriding value of life and physical integrity").

155. IdR. 1.6cmt. 23.156. Id. Rl 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 discourserequired 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 thecircumstances would suffice.").

158. For example, 2006 RPC 1.6(b)(1) does not forbid a lawyer from reporting threatenedharm anonymously. However, a lawyer should not report a threat anonymously if, under thecircumstances, 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 ofAriz. Ethics Comm., supra note 118, at 7.

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and content of 2006 RPC 1.6(b)(1) suggest that Washington lawyers will be expectedto 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 lawyersbecoming 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 lawyerreports the threat under 2006 RPC 1.6(b)(1), and when the defendant appears at thewife's residence the next day, the police are present, search him, and find a loadedgun. In a subsequent prosecution, the lawyer's testimony to client intent provescritical and the prosecutor subpoenas the lawyer to testify before the grand jury or attrial. A mandatory disclosure rule raises serious questions of whether this lawyerproperly may refuse to testify on the ground of attomey-client privilege when thelawyer already has revealed the client's communications as required by law.

The attomey-client evidentiary privilege shields many communications betweena lawyer and a client from testimonial production. 160 Yet, while the attorney-clientprivilege promotes policy interests similar to the duty of confidentiality,16 ' not allconfidential information is covered by the attomey-client privilege. The privilegeonly protects confidential communications between client and lawyer made "for the

160. See WASH. REv. CODE § 5.60.060(2)(a) (2006) (providing that "[a]n attorney orcounselor shall not, without the consent of his or her client, be examined as to any communicationmade by the client to him or her, or his or her advice given thereon in the course of professionalemployment"). 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 knownto the common law"); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS, ch. 5 introductorynote (2000) (noting that "[e]very American jurisdiction provides-either by statute, evidence code, orcommon law--that generally neither a client nor the client's lawyer may be required to testify orotherwise to provide evidence that reveals the content of confidential communications between clientand 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 haveviewed its central concern as one 'to encourage full and frank communication between attorneys andtheir clients and thereby promote broader public interests in the observance of law and administrationof justice') (internal footnote and citation omitted); Upjohn, 449 U.S. at 389 (observing that theprivilege's "purpose is to encourage full and frank communication between attorneys and their clientsand thereby promote broader public interests in the observance of law and administration ofjustice.The privilege recognizes that sound legal advice or advocacy serves public ends and that such adviceor 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 "attomey-clientprivilege is founded on the necessity that a client be free to reveal information to an attorney, withoutfear of its disclosure, in order to obtain informed legal advice").

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purpose of obtaining or providing legal assistance for the client,"' 62 whereas the dutyof confidentiality prohibits lawyers from disclosing any "information relating to therepresentation of a client."'163 For example, if a lawyer obtains a client's work historyfrom the client's employer for purposes related to the representation, that informationis "confidential" under 2006 RPC 1.6, since it constitutes "information relating to therepresentation of a client." Such information obtained from the client's employer isnot privileged. The lawyer thus may not disclose the client's work history withoutclient 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 attomey-client privilege, because theinformation will reveal direct communications with the client, such as in the domesticviolence hypothetical that opened this section. Whether the lawyer will have to testifyagainst a client whose threat he or she has disclosed often will tum on whether theclient's threat brings the client's communication into the "crime-fraud" exception tothe attorney-client privilege.

The crime-fraud exception exempts from the attorney-client privilege clientstatements of an intent to commit a future crime or fraud. 65 "[T]he purpose of thecrime-fraud exception to the attorney-client privilege [is] to assure that the 'seal ofsecrecy' between lawyer and client does not extend to communications 'made for thepurpose of getting advice for the commission of a fraud' or crime."' 6 6 The exceptiongenerally focuses on a nexus between a client's criminal purpose and the challengedattorney-client communication:

A party seeking to vitiate the attorney-client privilege under the crime-fraudexception must satisfy a two-part test. First, the party must show that "the clientwas engaged in or planning a criminal or fraudulent scheme when it sought theadvice of counsel to further the scheme". . .Second, it must demonstrate that theattomey-client communications for which production is sought are "sufficientlyrelated to" and were made "in furtherance of [the] intended, or present,continuing illegality."' 167

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'scommunication 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 CONDUCr 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 theattorney-client privilege).

165. See generally RESTATEMENT (THIRD) OF THE LAW GOVERNiNG LAWYERS § 82 (2000); 5AKARL 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,

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The Washington Supreme Court has applied the crime-fraud exception broadly,in a manner that suggests most if not all client communications disclosed under 2006RPC 1.6(b)(1) will fall outside of the attorney-client privilege.' 68 In State v. Hansen,Hansen consulted a lawyer about bringing a civil claim against a judge who presidedover his criminal trial.16 9 The lawyer reported a threat that Hansen made during thisconversation to harm the judge as well as the prosecutor and defense counsel in hiscase.' 70 The lawyer testified to this threat at Hansen's trial, and Hansen was convictedof intimidating the judge.' 71 On appeal, the Washington Supreme Court held thateven if an attorney-client relationship existed between the lawyer and Hansen, theprivilege did not attach to Hansen's threat:

The attorney-client privilege is not applicable to a client's remarks concerningthe furtherance of a crime, fraud, or to conversations regarding thecontemplation of a future crime .... Hansen's statement that he was going toblow away the judge, prosecutor and public defender falls under this exceptionto the attorney-client privilege.172

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

Case law from other jurisdictions, by contrast, holds that a client threat tocommit a crime or fraud in similar circumstances will remain privileged, even if the

491 U.S. at 563 (explaining that the crime-fraud exception applies to "communications 'made for thepurpose of getting advice for the commission of a fraud' or crime"); RESTATEMENT (THIRD) OF THELAW 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 orfiraud").

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

169. Id. at ll8.170. Id.171. Seeid. 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 disclosureof any confidential communication relating to representation of a client is necessary to prevent theclient from committing a criminal act that the lawyer believes is likely to result in death or substantialbodily harm."). Interestingly, in Hansen, the Supreme Court further held that "attorneys, as officers ofthe court, have a duty to warn of true threats to harm members of the judiciary communicated tothem by clients or by third parties." Hansen, 862 P.2d at 122. The court did not extend this disclosureduty to protect lawyers when the threat, as in Hansen, includes lawyers in their role as officers of thecourt. Dike v. Dike, 448 P.2d 490, 493 (Wash. 1968) (observing that a lawyer "is an officer of thecourt-a minister in the temple ofjustice").

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lawyer has disclosed the threat under a confidentiality exception.1 74 For example, inPurcell v. District Attorney for the Suffolk District, the Supreme Judicial Court ofMassachusetts quashed a subpoena that sought a civil lawyer's testimony at acriminal trial of the lawyer's prior client after the lawyer had reported a threat by theclient to bum down his apartment building.' 75 The court, invoking policy concernsabout deterring lawyers from reporting client threats of violence for fear of becomingwitnesses against them, held:

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

, * * Unless the crime-fraud exception applies, the attomey-client privilegeshould apply to communications concerning possible future, as well as past,criminal conduct, because an informed lawyer may be able to dissuade the clientfiom improper future conduct and, if not, under the ethical rules may elect in thepublic interest to make a limited disclosure of the client's threatened conduct.17 6

Purcell does not represent an outlier decision. In Newman v. State, the MarylandCourt of Appeals similarly rejected application of the crime-fraud exception to aclient threat that a lawyer reported under a confidentiality exception.' 77 Noting thenumerous courts reaching similar conclusions, the court held:

We . . . join our colleagues on both the federal and state levels who haverequired more than a mere statement of the intent to commit a crime or fraud totrigger the crime-fraud exception .... To permit the mere statement of intent todefeat the attorney-client privilege would result in the exception swallowing theprivilege.'

78

Perhaps in light of the newly-minted mandatory disclosure duty in 2006 RPC1.6(b(1), the Washington Supreme Court will clarify or limit Hansen to bringWashington's crime-fraud exception into line with the apparent majority of

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 toconfidentiality did not unilaterally waive the client's privilege. See id. at 333. The WashingtonSupreme Court's opinion in Hansen did not indicate that it would apply waiver doctrine to anattorney-client privilege claim following a lawyer disclosure under RPC 1.6. See Hansen, 862 P.2dat 121-22.

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jurisdictions. But either way, by eliminating any attomey discretion about whether todisclose a reasonably certain threat of serious harm, 2006 RPC 1.6(b)(1) precludesattorneys from weighing the professional consequences of becoming a witnessagainst a client when determining whether to disclose confidential information, evenwhen it is also subject to the attomey-client privilege. 179

d. Will lawyers who fail to report a client's threat become liable in tort tovictims of client violence?

The question of lawyer liability in tort to foreseeable victims of client violencewas discussed during the debate by the WSBA Ethics 2003 Committee on 2006 RPC1.6(b)(1). Some Committee members expressed concern that a mandatory disclosurerule could result in civil liability against lawyers in an area where the law previouslyhad not clearly established such liability, and where such liability, (or lawyer fear ofit), may not serve the public interest.' 80

Under the common law, "a person has no duty to prevent a third person fromcausing physical injury to another."181 Washington courts, however, have embraced ageneral exception to this rule when "a special relation exists between the actor and thethird person which imposes a duty upon the actor to control the third person'sconduct. '' 82 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 'aduty to take reasonable precautions to protect anyone who might foreseeably beendangered.""

83

179. See WASH. RULES OF PROF'L CoNDuCr R. 1.6(b)(l) (2006). But see id. R. 3.8(e)(limiting prosecutors' ability to subpoena lawyers to testify against clients to cases of demonstrablenecessity). RPC 3.8(e) provides:

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

Id180. See WSBA ETHIcs 2003 COMMrrrEE, REPORT AND RECOMMENDATION OF THE SPECIAL

COMMITTEE FOR EVALUATION OF THE RULES OF PROFESSIONAL CONDuCr, 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 Tarasoffv. Regents of the Univ. of Cal., 551P.2d 334, 343 (Cal. 1976).

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

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The 2006 RPC do not address whether the duty to disclose under 2006 RPC1.6(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 alawyer nor should it create any presumption in such a case that a legal duty hasbeen breached. . . .Nevertheless, since the rules do establish standards ofconduct by lawyers, a lawyer's violation of a Rule may be evidence of breach ofthe applicable standard of conduct.' 84

In other jurisdictions that have adopted a similar mandatory disclosure duty, no clearrule has developed of whether this type of disclosure duty creates an actionable dutyof care to third parties.' 8 5 But the potential for lawyer liability to foreseeable victimsharmed by violent clients has been explored in these jurisdictions' 86 and someobservers have advocated for such liability. 87 Washington lawyers should notdiscount the possibility.

In Hawkins v. King County, decided long before the 2006 RPC amendments, aWashington Court of Appeals noted "common law support for the precept that

184. WASH. RULES OF PROF'L CoNDucr pmbl., para. 20; see also Kevin H. Michaels &Kathryn A. Hockenjos, Attorney Ethics and Liability: A Critical Relation, N.J. LAw., Feb. 2006, at37, 37-39 (exploring the relationship between lawyer ethical duties and lawyer liability to injurednon-client third parties).

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

186. See, e.g., State Bar of Ariz. Ethics Comm., supra note 118, at 8-9 (exploring but notresolving the arguments and authorities for lawyer liability to injured third parties that may flow fromArizona'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 thelawyer's client); Davalene Cooper, The Ethical Rules Lack Ethics: Tort Liability When a LawyerFails to Warn a Third Party of a Clients 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 aduty to wam, 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 motivatelawyer 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 toreport threats involves threats against the client herself, "significant public policy concerns suggestthat attorneys should not be held responsible for failing to act for the protection of their victim-client").

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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 doubtthat the client has formed a firm intention to inflict serious personal injuries on anunknowing third person." 189 Although Hawkins has not established a firm commonlaw duty for Washington lawyers to protect foreseeable victims of client violence,Hawkins has proven quite influential in legal discourse on the subject.' 90

2006 RPC 1.6(b)(1)'s mandatory disclosure duty may add new ethical weight tothis common law authority supporting lawyer liability in tort for a failing to protectforeseeable victims of client violence. 19' The policy statement underlying RPC1.6(l)(b) is quite clear: lawyers' duties to clients and the adversarial system mustyield in the face of credible threats of violence to foreseeable persons.' 92 Tort lawmay follow in turn.

V. RULE 3.3: CANDOR

RPC 3.3 establishes lawyer duties of candor to tribunals.' 93 These rulesoperate in conjunction, but sometimes in conflict, with RPC 1.6's principles of

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 andliability to third parties.

191. See generally WASH. REv. CODE ANN. § 9.69.100 (West 2003) (imposing criminalliability on persons who observe the commission or preparation of a violent offense or an assaultagainst a child and fail to report it to law enforcement, except "[t]his section shall not be construed toaffect privileged relationships as provided by law").

192. See WASH. RuLEs OF PROF'L CONDUCr R. 1.6 cmt. 6 (2006) (explaining that thisexception "recognizes the overriding value of life and physical integrity").

193. The 2006 version of RPC 3.3 provides:a) A lawyer shall not knowingly:

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

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

3) fail to disclose to the tribunal legal authority in the controllingjurisdiction known to the lawyer to be directly adverse to theposition 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

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confidentiality, since RPC 3.3 often targets information relating to the representationof a client for disclosure or other action by the lawyer to ensure that the integrity ofthe judicial process is not undermined. 194

2006 RPC 3.3 looks quite similar to Model Rule 3.3, but contains someimportant nuances. Model Rule 3.3 is perhaps most notable for its imposition of amandatory disclosure duty-a duty that overrides Model Rule 1.6confidentiality 95-when disclosure is necessary to remedy the past presentation offalse evidence to a tribunal.1 96 2006 RPC 3.3(c) contains a similar rule,' 97 but theRPC version does not override RPC 1.6 confidentiality. On the contrary, 2006 RPC3.3(c) provides that a lawyer must disclose that he or she has learned of the falsity ofmaterial evidence "unless such disclosure is prohibited under Rule 1.6."' 1 98

This distinction between Model Rule 3.3 and 2006 RPC 3.3 largely may beobviated, however, by the broader "any crime" disclosure authorized by 2006 RPC1.6(b)(2). When disclosure is permitted by 2006 RPC 1.6, RPC 3.3(c) makesdiscretionary disclosure mandatory when necessary to correct a court record-andperjury, of course, is a crime.'99 Even if 2006 RPC 1.6 does prohibit disclosure, RPC3.3(d) requires the lawyer promptly to "make reasonable efforts to convince the client

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 promptlymake reasonable efforts to convince the client to consent to disclosure. If theclient refuses to consent to disclosure, the lawyer may seek to withdraw fromthe representation in accordance with Rule 1.16.

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

f) In an ex parte proceeding, a lawyer shall inform the tribunal of all material factsknown 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 CONDucr 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 CONDUCr 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 thetribunal unless such disclosure is prohibited by Rule 1.6").

198. Id.

199. See Vernon I? Pearson & Peter Greenfield, Intmduction 1 KELLY KuNscH, WASH. PRAC.SERIES § 3 (4th ed. 1997). This disclosure duty, like all the duties under 2006 RPC 3.3, continues "tothe conclusion of the proceeding." WASH. RULES OF PROF'L CONDuCr R. 3.3(b). "A proceeding hasconcluded within the meaning of this Rule when a final judgment in the proceeding has beenaffirmed on appeal or the time for review has passed" Id. R. 3.3 cmt. 13.

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to consent to disclosure. ' 200 If the client refuses to consent, "the lawyer may seek towithdraw from the representation in accordance with Rule 1.16 .02'

2006 RPC 3.3(a)(2) similarly requires disclosure to a tribunal when necessary toavoid assisting in a criminal or fraudulent act by the client, "unless such disclosure isprohibited by Rule 1.6.202 Similar to Model Rule 3.3(b), 2006 RPC 3.3(a)(2) appearsto be directed at preserving the integrity of the adjudicative process beyond thepresentation of evidence, "such as bribing, intimidating or otherwise unlawfullycommunicating with a witness, juror, court official or other participant in theproceeding, unlawfully destroying or concealing documents or other evidence orfailing to disclose information to the tribunal when required by law to do so."203 Thisprovision also may include circumstances where a lawyer believes that a clientintends 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 sothat now not only must lawyers not knowingly make a false statement of fact or lawto a tribunal, but lawyers also must correct their past false statements of material factor law. Lawyers periodically learn that information they previously have provided toa court in good faith was inaccurate or incorrect. Under 2006 RPC 3.3(a)(1), lawyersin such circumstances must correct the record before that tribunal if the incorrectstatement 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 statementsto RPC 1.6 confidentiality.

207

An not uncommon predicament may arise under this provision when a lawyer ingood faith asserts a fact that the lawyer later learns was inaccurate, but the lawyeroffered the fact on "information and belief," or with some other recognized caveat

200. WASH. RULES OF PROF'LCONDUCTR. 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 RESpoNSmILrr. PROBLEMS OF PRACTICE AND

THE PROFESSION l 16-17 (3d ed. 2004) (noting ambiguity on whether a lawyer may disclose a client'sfuture intent to testify falsely). 2006 RPC 3.3(a)(2) does not make entirely clear that a lawyer maydisclose a client's future intent to testify falsely. RPC 3.3 Comment 6 provides only: "If a lawyerknows that the client intends to testify falsely ... the lawyer should seek to persuade the client thatthe evidence should not be offered. If the persuasion is ineffective and the lawyer continues torepresent the client, the lawyer must refuse to offer the false evidence. If only a portion ofa witness'stestimony will be false, the lawyer may call the witness to testify but may not elicit or otherwisepermit the witness to present the testimony that the lawyer knows is false." WASH. RULES OF PROF'LCoNDucr R. 3.3 cmt. 6.

205. MODEL RULES OF PROF'L CoNDUc R. 3.3(a)(1) (2007) (providing that "[a] lawyer shallnot knowingly[] make a false statement of fact or law to a tribunal or fail to correct a false statementof 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

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signaling that the information remained unverified when it was offered.2°8 Lawyersoften condition their representations in this manner to protect themselves againstmisrepresentation claims for unverified factual assertions that later prove inaccurate.Depending on local practice norms, judges may be understood to take factualassertions offered on "information and belief' with the implicit warning of "buyerbeware." Yet, in many cases, lawyers do offer this information with the expectationthat 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 lawyersto return to the tribunal and correct the record even when material facts offered on"information and belief' are discovered to be inaccurate.2" 9

Two counter-arguments perhaps could be made to mandated correction of lawyerstatements offered on "information and belief."2 10 First, a lawyer could argue that anunverified factual assertion explicitly offered on "information and belief' carries theunderstood warning to the court of "potentially untrue." Thus, the argument goes,even when the lawyer learns of the falsity of the underlying factual assertion, thelawyer in essence still has not offered a "false" statement of fact to the court becausethe lawyer never offered the fact as "true." This hardcore "buyer beware" argumentagainst 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 alsocontravenes the clear message of 2006 RPC 3.3: with very limited exception, alawyer should not knowingly permit a court to operate under demonstrably falsefactual information, particularly false information that the lawyer personally providedto the court.212

Another argument against disclosure may be more likely to pass the ethicalscowl 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

208. The local vernacular may change, but to my knowledge the practice principle remainsthe same from jurisdiction to jurisdiction. For example, a lawyer who handles an initial criminalappearance may need to address the client's bail conditions without having a chance to investigatefully. The lawyer therefore may offer facts about the client's residence, employment, or otherinformation relevant to bail based solely on representations by the client, or by friends or familypresent in court or whom the lawyer can reach by telephone. Young lawyers quickly learn that thisinformation does not always pan out upon further investigation, and a lawyer relying on unverifiedinformation commonly will communicate the lack of verification to the court in some acceptedmanner, such as, "Your Honor, on information and belief, my client is employed full-time."

209. See WASH. RULESOFPROF'LCONDUCTr 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 11.212. 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 "anofficer of the court-a minister in the temple ofjustice").

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the court, but rather represented to the court that some other source has asserted thefact, a fact that remains personally unverified by the lawyer. Thus, the argumentcontinues, the lawyer must disclose the subsequently learned falsity of the assertedfact only under 2006 RPC 3.3(c), not 2006 RPC 3.3(a)(1), and 2006 RPC 3.3(c) islimited by RPC 1.6 confidentiality.

This argument may have some analytical merit to it. But, until Washington courtsmake lawyers' full responsibility under 2006 RPC 3.3(a)(1) clear, a lawyer shouldbeware of leaving a false factual assertion to a court uncorrected when that assertioncame out of the lawyer's own mouth.213 Given that lawyers frequently will not havepersonal knowledge of facts they personally assert to a court, 214 a lawyer's expressedlack of personal knowledge may not transform the lawyer's personally-madeassertion 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 expectgreater 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 reasonablebelief that evidence is false does not preclude its presentation to a tribunal. Althoughthis 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 falseevidence to a pure knowledge standard. In State v. Berrysmith, for instance, the Courtof Appeals upheld a lawyer's in camera report to the trial court of a client's potentialperjury based solely upon the lawyer's "reasonable belief' that the client intended toperjure 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 hereasonably believed to be false.' 2 7

A reasonable belief in the falsity of testimony, however, does authorize a lawyer218to refuse to offer the evidence. 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's219option to refuse to present evidence reasonably believed to be false. A lawyer who

prevents a criminal defendant from testifying altogether, however, based solely uponthe lawyer's reasonable belief that the testimony is false, would create a serious

213. See WASH. RULEs OF PROF'L CONDUCT R. 3.3 cmt. 3 (acknowledging that lawyers willnot always have personal knowledge of matters asserted by the lawyer, but that "[t]here arecircumstances where failure to make a disclosure is the equivalent of an affirmativemisrepresentation").

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. at402.218. See WASH. RULES OF PROF'L CoNDucr R. 3.3(e).

219. See id.

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constitutional problem since some courts have suggested that a criminal defendant'sconstitutional right to testify cannot be denied altogether even when the lawyer knowsthat the defendant will testify falsely.220 The United States Supreme Court has heldonly that a criminal defendant has no constitutional right to present false evidence orto the assistance of counsel in presenting false evidence, not that counsel may keep aperjurious defendant off the witness stand altogether.22 1

When a lawyer knows that a client intends to testify falsely, 2006 RPC 3.3 doesnot permit the lawyer to pursue the "narrative" approach to presenting the client'sfalse testimony. 22 If the lawyer cannot dissuade the client from testifying falsely, thelawyer "must refuse to offer the false evidence. ' 223 The lawyer may call the witnessto offer any truthful portions of his or her testimony, but the lawyer "may not elicit orotherwise 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 ofthe 2006 amendments to the RPC will impact daily, real-world legal practice. Amongthe many important new ethical rules to be learned, lawyers should pay specialattention to the new ethical rules governing client confidentiality and candor totribunals.

The ethical norms of confidentiality and candor have always defined much ofgood, ethical legal practice, and they are tied to some of the most critical new duties

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 adefendant's theory were that he told his lawyer he wanted to testify, but that his lawyer refused toallow 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 theaccused 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 pejury).

222. See WASH. RULES OF PROF'L CoNDucr R. 3.3 cmt. 7. In the narrative approach, thelawyer generally does not examine or aid the client during any portion of his or her testimony that thelawyer knows to be false, nor does the lawyer argue the false portions of the client's testimony insummation. The lawyer also may advise the court in general terms of his or her intended course ofaction 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 exparte disclosure of client's intent to testify falsely totrial judge and narrative approach to the presentation of the client's testimony). Washington lawyersethically may employ this narrative approach when practicing in a jurisdiction that requires orpermits it. See RuLES OF PROF'L CoNDuCr R. 8.5(a).

223. WASH. RULESOF PROF'LCONDUCT R 3.3 cmt 6.

224. Id. Even when a lawyer knows that a client's testimony will be false, a lawyer's refusalto pennit a criminal defendant to present testimony may raise constitutional questions, if this ethicalcommand 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.

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2007/08] CONFIDENTIALITY AND CANDOR 367

under the 2006 RPC. When these duties conflict, pitting lawyers' loyalty to clientagainst lawyers' responsibilities as officers of the court and citizens, the 2006 RPC donot mandate zealous advocacy, but diligence in advocacy, where ardentrepresentation is tempered by conscientious decision-making. Washington lawyersshould study the 2006 RPC carefully so they can ensure that they strike this balanceeffectively for themselves, their clients, and the broader community.

Documents

Confidentiality and Candor under the 2006 Washington …blogs.gonzaga.edu/gulawreview/files/2011/02/Holland.pdfConfidentiality and Candor under the 2006 Washington Rules of Professional