Attorney E-Newsletter

February 2006

RPC 1.6: Confidentiality

RPC 1.6, regarding confidentiality, was not extensively amended in the revisions of the Pennsylvania Rules of Professional Conduct which took effect January 1, 2005. However, one major change could be life-saving, under certain circumstances.

The most important change is the addition of a new RPC 1.6(c)(1), which provides that a lawyer may reveal confidential information learned in the course of a representation where the lawyer reasonably believes it is necessary "to prevent reasonably certain death or substantial bodily harm." Previously, the rule only authorized lawyers to reveal information to prevent the client from committing a criminal act likely to result in such harm. Now, the lawyer may reveal the information in any situation where she concludes that doing so is necessary to prevent reasonably serious death or bodily harm. Comment 10 gives an example:

Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town's water supply may reveal this information, to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life threatening or debilitating disease and that the lawyer's disclosure is necessary to eliminate the threat or reduce the number of victims.

As before, a lawyer is permitted to reveal confidential information to prevent a criminal act by the client which is likely to result in substantial injury to the financial interests or property of another.

There are two minor changes. RPC 1.6(a) reflects a wording change consistent throughout the revised rules, in which "gives informed consent" is substituted for "consents after consultation."

RPC 1.6(c)(3), which allows the lawyer to make certain disclosures when a client commits a criminal or fraudulent act in which the lawyer's services are used, is amended to add that the lawyer may make disclosure to "mitigate" as well as to prevent or rectify the consequences of such conduct.

Finally, a new subsection 1.6(c)(5) is added, stating that the lawyer may make disclosures in order to "secure legal advice about the lawyer's compliance with these Rules." It was generally believed before that a lawyer could discuss confidential matters with another lawyer in a confidential setting to secure legal advice, or could raise issues anonymously in order to obtain an advisory opinion, but this is now explicit in the Rule. In this connection, new Comment 4 is also of interest:

This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

The Comments are extensively revised, and a complete survey of the many changes is beyond the scope of this brief summary. The following major changes may be reviewed by those facing or concerned about such issues:

  • New Comment 1 notes the relationship of this rule to several other Rules of Professional Conduct.
  • Comment 10 extensively discusses the "certain death or substantial bodily harm" exception.
  • Comment 11 discusses the exception where the lawyer believes the client will commit a criminal act causing injury to the financial or property interests of another.
  • Comment 16 discusses the "legal advice" exception.
  • Comment 18 addresses disclosures required by other law.
  • Comment 19 discusses disclosure ordered by a tribunal.
  • Comment 20 describes steps which should be taken with the client prior to disclosure and the limitations which should be placed on necessary disclosure.
  • Comment 21 notes that the rule "permits but does not require" these disclosures, and describes considerations that should go into the decision as to whether and what disclosure is appropriate.

It is worth noting that RPC 1.6 is not limited to confidential communications, unlike the attorney-client privilege. It is broader than the privilege, and extends to all "information relating to representation of a client," except for disclosures that are impliedly authorized in order to carry out the representation.

Tip Of The Month

Are you aware of the extent of FDIC coverage on your trust accounts? Trust funds kept in financial institutions other than credit unions are under FDIC coverage to the amount of $100,000 for each owner. The owner is not the attorney whose name is on the trust account, but each person who has a beneficial interest in that account. The $100,000 limitation extends not just to the owner's funds in the trust account, but also to all other funds that the owner has with the same institution.

As to trust accounts in credit unions, each individual owner is uninsured unless the owner is a member of the credit union. If a lawyer registers a trust account placed in a credit union with the Pennsylvania Lawyer Trust Accounts Board, that agency sends the lawyer a letter advising of this fact.

(Source: Pennsylvania Lawyer Trust Accounts Board)

Supreme Court Addresses Collateral Estoppel, Jurisdiction Over Minor Judiciary

In addition to the Czmus case, reported in the January E-Newsletter, the Supreme Court of Pennsylvania filed two other opinions on disciplinary cases in December 2005.

In the case of Office of Disciplinary Counsel v. William Kiesewetter, the Supreme Court examined a case in which the lawyer in question had been found in a civil case to have engaged in acts of civil fraud. In cases of civil fraud, the same standard of proof is used as in disciplinary cases - a preponderance of the evidence that is clear and convincing. In the disciplinary case, the Office of Disciplinary Counsel submitted the civil judgment into evidence and argued that the findings of the civil court were binding in the disciplinary proceeding under the doctrine of collateral estoppel and that the respondent-attorney could not relitigate facts he had lost under the same standard of proof in the civil case.

The Disciplinary Board agreed and recommended that the attorney be disbarred. On review, the Supreme Court, in an opinion written by Chief Justice Cappy, concluded in a case of first impression that collateral estoppel "can be asserted either defensively as a shield to prosecution of an action or offensively as a sword to facilitate prosecution." The opinion then examined the elements of the doctrine of collateral estoppel and concluded that they had each been met, and that the conduct proven by the civil judgment did constitute professional misconduct warranting disbarment. Thus, the respondent-attorney was disbarred. The unanimous decision of the Supreme Court may be read at the following address:

In another case, Office of Disciplinary Counsel v. Julius Melograne, the Supreme Court examined the relationship between the judicial and attorney disciplinary systems. The respondent-attorney was both a lawyer and a district justice. He resigned his judicial office after being convicted of conspiracy to commit mail fraud and conspiracy to violate civil rights in the United States District Court for the Western District of Pennsylvania. The Court of Judicial Discipline removed him from office, declared him ineligible to hold judicial office, and disbarred him. On review, in an earlier decision, the Supreme Court vacated the order of disbarment, holding that only the Supreme Court had power to disbar an attorney serving as a judicial official. The respondent-attorney was placed on suspension and referred to the Disciplinary Board, leading to the proceeding on which the opinion of December 30, 2005 was based.

In an opinion written by Justice Newman, the Supreme Court examined the record and noted that the respondent-attorney's conviction was for conduct committed in the course of his judicial office and which adversely affected the administration of justice. After noting, "when an attorney who holds judicial office commits misconduct that affects the fairness of an adjudication, disbarment is clearly a sanction that we must strongly consider," the opinion examined mitigating evidence offered by the respondent-attorney, and concluded it was insufficient to warrant imposition of a penalty less than disbarment. Accordingly, the respondent-attorney was disbarred.

The opinion may be read at the following address: