Reuters ABA Eyes Ethics Changes in Crime Disclosure, Sex By Gail Appleson, Law Correspondent NEW YORK (Reuters) -- The American Bar Association is set to vote next
week on the first overhaul of its 18-year-old code of ethics that guides
lawyers in everything from when they can reveal confidences to when they
can have sex with clients.
The ABA's House of Delegates, its rule-making body, will weigh proposed
rule changes in what promises to be two emotionally charged sessions
toward the end of the ABA's annual meeting that begins on Thursday in
Chicago.
Some of the proposals, including one that would broaden situations in
which lawyers may disclose clients' confidences, are so controversial that
it is doubtful the delegates, at sessions next Monday and Tuesday, will
complete action during this meeting. Instead, some lawyers believe voting
may have to be continued at sessions next year.
The ABA's annual meeting is expected to draw more than 10,000 people.
It will involve thousands of sessions and events on topics ranging from
the death penalty to protection of music on the Internet.
The ABA's hardest work will come next week when it tackles proposed
changes to its 1983 ``Model Rules of Professional Conduct.'' It is the
first broad-based effort to revise a large portion of the code.
While the ABA has no power to force individual states to follow its
rules, it serves as a powerful guide for individual bar associations. Most
states, the District of Columbia and the Virgin Islands follow versions of
the ABA's ethics code.
Disparities among jurisdictions prompted the ABA to appoint a
commission in 1997 to review the rules and propose revisions that would
lead to uniformity and reflect changes in the profession.
While many of the proposed changes are relatively innocuous, some are
expected to result in heated debate. These include a proposal revising
language governing client confidentiality and another that introduces a
specific ban on sexual relations with clients.
DISCLOSURE OF FINANCIAL FRAUD
The ABA's existing attorney-client confidentiality rule allows lawyers
to disclose information if it would stop a client from committing a crime
that would likely cause ''imminent death or substantial bodily harm.''
The proposed language would be expanded to allow disclosures that would
prevent ``reasonably certain'' death and the threat would not have to be
``imminent.''
Commentary on the rule states that that change would allow a lawyer to
disclose information if someone might suffer harm at a later date, such as
in the case of exposure to a toxin.
Supporters of the new language say it would allow lawyers to warn
against dangerous products like defective tires, asbestos and cigarettes.
The proposed language would also allow a lawyer to make a disclosure in
order to stop a client from committing a crime or fraud if it was
reasonably certain to cause a substantial economic loss. The lawyer could
only reveal the information if his client was using the attorney's
services in the crime.
One member of the ABA commission submitting the revisions is objecting
to the proposed changes in the attorney-client rule. The lawyer, Lawrence
Fox of Philadelphia, fears the changes will place lawyers in the position
of being whistle-blowers against their clients.
Among other proposed changes is the introduction of a rule that would
prohibit a lawyer from having sex with a client unless a consensual sexual
relationship predated the professional contact.
Commentary accompanying the proposal cautions that lawyers should
consider whether even a pre-existing sexual relationship would hurt the
lawyer's ability to represent the client.
Nancy Moore, a law professor at Boston University who played a key role
in researching the ethics issues and drafting revisions, said that while
some lawyers believe the concerns are addressed by existing rules, the
commission felt it was best to have a specific ban.
``This is exactly what other professional organizations have done...The
point was to be more prophylactic,'' she said.
However, opponents of the proposed language feel the rule is too broad
and inflexible and could expose lawyers to disciplinary action for
innocent relationships.
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August 1, 2001
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