The Model Rules of Professional Conduct fail to provide lawyers with adequate guidance for dealing with situations in which a client has used the lawyer's services to perpetuate a fraud. He Model Rules do not discuss confidentiality in cases of client-committed fraud at all, and the provided exceptions to the confidentiality requirement do little to help attorney's deal with past frauds committed by a client with the unwitting aid of the attorney. The Model Rules should be amended to authorize disclosure of client confidences to rectify a crime or fraud when the lawyer's services have been used in the commission of that crime or fraud. A lawyers duty of loyalty to the client is not absolute; society, too, has a right to be able to rely on the accuracy of information provided by clients through their attorneys. Such disclosures do not undermine the time-honored duty of confidentiality because disclosure is allowed when a client misuses the attorney-client relationship. The client-based approach to lawyering must have some limits, and a lawyers duty to the public and the justice system may sometimes outweigh the otherwise important duty of confidentiality to individual clients.
Maria Helen Bainor and Nancy Batterman,
Report on the Debate Over Whether There Should be an Exception to Confidentiality for Rectifying a Crime or Fraud,
20 Fordham Urb. L.J. 857
Available at: https://ir.lawnet.fordham.edu/ulj/vol20/iss4/3