History of Exceptions to Confidentiality

1908 ABA Canons of Professional Ethics

1966 Monroe Freedman wrote Three Hardest Questions

1967 In re Ryder, 263 F.Supp. 360 (E.D. Va.)

1969 ABA Model Code of Professional Responsibility

Structure: Canons, Ethical Considerations (ECs), and Disciplinary Rules (DRs)

DR 4-101 (= MR 1.6)
-Broader re to prevent crime (any crime, hence included perjury and fraud)
-Narrower re consent, did not include "implied consent"

DR 7-102
-To correct prior fraud on tribunal OR person; originally seemed to override 4-1-101

1973 Armani and Belge learn about hidden bodies from client

1974 Belge discloses hidden bodies during trial

1974 Amendment to 7-102 (not adopted in all jurisdictions):"UNLESS INFORMATION IS PRIVILEGED"

1978 NY State Bar decision on complaint against Armani and Belge

1983 ABA Model Rules of Professional Conduct MR 3.3 (a)(4) [See Zitner at page 193-4]

-Broader than 1974 amendment
--no exception for privileged info

-But narrower:
--only tribunal
-only during the pendency of the proceeding
-Vague "remedial measures"
--have to read the comments to interpret: only a guide

MR 4.1 = DR7-102 as to person (not tribunal)
-does not over-ride privilege (unlike DR)

1986 Nix v. Whiteside, 475 U.S. 157

    1. Habeas case
      1. Taken as unambiguous fact
        1. D did not see gun
        2. D intended to commit perjury
    2. What Nix does not hold.
      1. Does not mandate "remedial measures"
      2. Does not involve
        1. D denied right to testify
        2. Disclosure of confidence to the court
        3. Perjury discovered afterwards
    3. Iowa had not adopted Model Rules
    4. DR 7-102 applied to facts of case
    5. CJ Burger misses 1974 amendment to DR 7-102(B)(1)

        2001: Georgia adopts modifed version of 1983 Model Rules

        Ethics 2000 Recommendations

        2002 Model Rules Adopted
        --rejects Ethics 2000 recommendations to expand exceptions in MR 1.6
        --adds to MR 3.3 requirement of remedial measures: "including, if necessary, disclosure to the tribunal"

        2003 Amendments to MR 1.6 and 1.13 (prompted in large part by Enron and Sarbanes-Oxley Act passed by Congress amending the securities laws)