History of Exceptions to Confidentiality
1908 ABA Canons of Professional Ethics
1966 Monroe Freedman wrote Three Hardest Questions
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"
-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
-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
-does not over-ride privilege (unlike DR)
1986 Nix v. Whiteside, 475 U.S. 157
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)