The Law Of Unintended Consequences: Whether and When Mandatory Disclosure Under Model Rule 4.1(b) Trumps Discretionary Disclosure Under Model Rule 1.6(b)

 In Articles, Symposium

In 1936, Harvard sociologist Robert K. Merton wrote an article entitled, The Unanticipated Consequences of Purposive Social Action, which sought to explain how and why actions taken for ostensibly clear and desirable purposes may nonetheless lead to negative and unforeseen results. This Article is about one set of apparently, or at least arguably, unintended consequences of the development over time of the ABA Model Rules of Professional Conduct (“Model Rules”).

When the Model Rules were first adopted, the category of situations in which a lawyer either could or was required to reveal what would otherwise be considered confidential client information, protected by Model Rule 1.6(b), was quite limited. In the post-Enron “lawyer-as-gatekeeper” era, however, Model Rule 1.6(b) has been amended to give lawyers far broader discretion to disclose future, present, and even past client wrongdoing than had previously existed. Unfortunately, the proponents of these changes do not appear to have fully considered, and the ABA House of Delegates appears not to have debated, that there could be many instances in which the discretion given to lawyers to disclose confidential client information pursuant to expanded Model Rule 1.6(b) would be transformed into mandatory duties to disclose under Model Rule 4.1(b). Model Rule 4.1(b) provides, in part, that “[i]n the course of representing a client a lawyer shall not knowingly . . . fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.” This possibility—that mandatory disclosure under Model Rule 4.1(b) “trumps” discretionary disclosure under Model Rule 1.6(b)—exists because mandatory disclosure is required under Model Rule 4.1(b) “unless disclosure is prohibited by Rule 1.6,” and Model Rule 4.1(b) does not expressly state whether that prohibition is to be assessed with or without consideration of discretionary disclosure under Model Rule 1.6(b).

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