4.1:300 DISCLOSURES TO AVOID CLIENT FRAUD [SEE ALSO SECTION ]

• Jurisdiction: Arizona

4.1:300 Disclosures to Avoid Client Fraud [see also Section 1.6:370]

ER 4.1(b) provides that a lawyer may not knowingly fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. The Comment to this aspect of ER 4.1 states that its purpose is to recognize that "[i]n extreme cases, substantive law may require a lawyer to disclose certain information to avoid being deemed to have assisted the client's crime or fraud." ER 4.1 cmt. [3]. Both the Rule and the Comments provide that the disclosure obligation imposed by ER 4.1 is subject to the obligation to maintain client confidences imposed by ER 1.6. Arizona's ER 1.6 differs significantly from MR 1.6, with the result that there may be instances under the Arizona ethical rules where the obligations imposed by ER 4.1 override the obligation to maintain client confidences under ER 1.6.

ER 1.6(b), unlike the corresponding Model Rule, requires a lawyer to disclose information otherwise protected by ER 1.6(a) to the extent the lawyer reasonably believes is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm. For example, in Arizona Ethics Opinion No. 91-18, the Committee, relying both on this provision and ER 1.14(b), concluded that a lawyer may reveal a client's threat to commit suicide, if the lawyer is satisfied that the suicide would be a criminal act.

ER 1.6(c), for which there is no...