Ethics

We don't know whether lawyers at SmithKline Beecham were aware of the suppressed information, reported in the Times and Journal yesterday, that showed that its diabetes medicine, Avandia, might actually be "riskier to the heart" than a competitor's product (and in any event not better). 

But if they were aware, I hope we find out. This disclosure commends the wisdom of the change in the exception to confidentiality in Rule 1.6(b)(1). It previously required that there be a risk of death or substantial bodily harm, but the risk had to be imminent and through the criminal act of a client. Now, the imminence requirement is gone, the need for the act to be criminal is gone, and the need for the act to be the client's is gone.

Or at least that is so in the Model Rules, not everywhere. In California, for example, the act must still be criminal. Other states have retained the Code language permitting revelation to prevent a client crime, any crime.

The SmithKline story presents a real life example of a hypothetical that often appears in class (it does mine). It also raises this question: When physical harm is at risk, should the disclosure duty be mandatory, as it is in a fair minority of states?

A separate question is this: Why should the lawyer's duty or authority depend on the rule in the state in which he or she happens to work? This product is marketed nationally, the risk is national, the product is federally regulated. If there is a justification for federal preemption of lawyer ethical rules, shouldn't this be it?