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Ethics

: Legal Ethics Forum

Seinfeld, Vermont, and Rule 1.6

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In the memorable last episode of Seinfeld, the lead characters get arrested in Massachusetts and sent to jail for failing to help someone who was getting carjacked. The storyline seemed a little far fetched, but then again, it was Seinfeld. And it was funny.

It turns out that the script would have worked even better for a legal drama set in Vermont, at least after next month. Starting September 1, 2009, lawyers will violate Rule 1.6 if they fail to to reveal confidential client information when they reasonably believe disclosure is necessary

(1) to prevent the client or another person from committing a criminal act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to, a person other than the person committing the act; or (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer?s services; or (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client?s commission of a crime or fraud in furtherance of which the client has used the lawyer?s services.

To my knowledge, Vermont is the first jurisdiction to impose a duty to report under the circumstances described in (2) and (3) above. Many states do not even give lawyers the discretion to disclose under these circumstances, let alone impose an obligation to do so. For legal ethicists, Vermont's new provision qualifies as pretty radical.

Personally, I prefer the discretionary disclosure provisions in Model Rule 1.6 and think that Vermont has gone too far, at least with regard to (2) and (3). (I actually like subsection (1), which addresses the suicide problem quite nicely.) Does anyone want to defend subsections (2) and (3)?

Full post as published by Legal Ethics Forum on August 18, 2009 (boomark / email).