Client confidence rules set to slacken after ABA debate

The American Bar Association (ABA) has debated changes in the rules governing client-attorney privilege, but has voted in favour of only a few of the proposals.

A plan to allow lawyers to break client confidences to prevent fraud or financial injury was thrown out in a vote of members at the ABA’s annual conference, held in Chicago last week.
However, a proposal to change the rules to allow lawyers to make disclosures to prevent “reasonably certain death or substantial bodily harm” won the support of 243 out of 427 members.
Current rules say that lawyers can break client confidences to prevent a client from committing a crime that is likely to result in imminent death or substantial bodily harm. The changes remove the specifications that the act should be criminal, that it should be committed by the client, and that the death should be imminent.
Nancy Moore, chief reporter to the ABA Ethics 2000 committee which made the proposals, said: “In some situations, particularly involving environmental harm, harm is reasonably certain but it is not imminent, for example, if toxic waste is leaking into a water supply.
“In most cases there is difficulty determining whether certain situations are criminal, for example client suicide, which in many places has been decriminalised.”
Lawyers can also now break confidences to prevent crimes by people other than their clients.
The proposal to allow disclosure to prevent a client from committing a fraud which would result in financial injury was rejected by 255 votes to 151. Barry Berke, litigation partner at Kramer Levin Naftalis & Frankel, said: “I think the fact that they rejected the larger intrusion to the attorney-client privilege was a very good result. This change is a far narrower change.”
The ABA also voted in a change to outlaw sexual relations between a lawyer and a client, unless a consensual sexual relationship existed at the time the client-lawyer relationship started.