26.7 - 3. Public Policy Exceptions

JurisdictionNew York

3. Public Policy Exceptions

Other exceptions to the privilege are based on public policy considerations. For example, ABA Model Rule 1.6(b) lays out seven exceptions to the privilege. The rule states:

A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(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;
(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;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

Most states have adopted some formulation of these exceptions. However, these exceptions can differ widely. California, for instance, only permits, but does not require, the disclosure of confidential information if the attorney “reasonably believes disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in the death of, or substantial bodily harm to, an individual.”3703 The consequences associated with these differences are important to understand because an attorney can be caught in the middle of two conflicting rules.

One noticeable example of this concerns the rules of professional responsibility for attorneys who appear and practice before the Securities and Exchange Commission (SEC). Attorneys who observe material breaches of securities laws and have completed internal reporting requirements may report privileged information to the SEC.3704 The regulations also contain a specific preemption provision: “An attorney who complies in good faith with the provisions of this part shall not be subject to discipline or otherwise liable under inconsistent standards imposed by any state or other United States jurisdiction where the attorney is admitted or practices.”3705

The American Bar Association and many states, including New York,3706 took the step of amending the model rules of professional conduct and individual state rules to accommodate these new...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT