This Article explores the attorney's duty of confidentiality in the context of environmental dangers, examining the history and purpose of the duty and the model ethical rule that controls issues of confidentiality, Rule 1.6 of the Model Rules of Professional Conduct ("Model Rules"). Important scholarship has criticized Model Rule 1.6, but that scholarship has not explored the effects of the Rule in the area where the stakes are highest: environmental catastrophes. The Article analyzes the Rule's text, commentary, and legislative history and discusses the two predominant views of the attorney in our society, the attorney as champion and as officer of the court. Next, the Article considers these conceptualizations of the attorney's role as they relate to the issue of confidentiality and Rule 1.6, concluding that the view of the attorney as a champion pervades the Model Rules. This Article contributes to the debate regarding Model Rule 1.6 by charting the Rule's inexorable momentum toward silence and questioning the social utility of such silence when a client's conduct threatens serious harm. The Article poses the issue of a domestic-Bhopal as a way of contextualizing the duty and balance of considerations created by Model Rule 1.6. This catastrophic context is set not to argue for an environmental exception to the Rule but rather to test the prohibition against disclosure in the extreme circumstance of widespread harm. An environmental disaster presents cumulative harm and thus calls for reassessment of the categorical nature of Rule 1.6. Although grave harm can result from negligent or fraudulent conduct, and tort law may impose liability for creating these risks, such considerations do not result in a viable exception under the ethical rule. Rule 1.6 includes an exception to the duty of silence when a client threatens criminal conduct likely to result in serious harm to others. However, this exception fails to provide adequate protection for third parties because the crime requirement derails consideration of the threatened peril. Finally, the Article proposes substitute language for the Model Rule to balance the dual risks of improvident disclosure and improvident silence.
Irma S. Russell,
Cries and Whispers: Environmental Hazards, Model Rule 1.6, and the Attorney's Conflicting Duties to Clients and Others,
72 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol72/iss2/3