Attorneys Have Greater Freedom to Disclose Serious Misconduct

Most corporate constituents believe that you are their attorney and anything they tell you is confidential and must never be disclosed. But alas, we do not live in a "Matlockian" world. A lawyer's confidentiality obligations have never been absolute, but post-Enron, attorneys have had additional freedom to disclose confidential information that will prevent or rectify serious misconduct. Resorting to this option could destroy one's career and, at least in Minnesota, the state whistleblower laws will not protect you.

Confidentiality has been the bedrock of the attorney-client relationship. The Commentary to Model Rule 1.6 states the public policy behind confidentiality: "This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even about embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. The Model Rules have never imposed an absolute duty of confidentiality; indeed, a lawyer has traditionally been permitted to disclose confidential information when he reasonably believes doing so is likely to prevent death or substantial bodily harm. Still, until recently, information relating to financial frauds was not reportable.

Brian Martin

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