[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

the matter is remanded for further proceedings consistent with this opinion. . . .
Problem
7-5. May (must) Martyn & Fox disclose that Husband just stomped out of Fox’s office,
screaming, “I’m going to kill her rather than give her the Cape Cod house”? What if Dad
tells Fox that’s what Son just told Dad in a phone call not ten minutes ago? What if Fox
calls the police, and then is subpoenaed to testify at a grand jury proceeding considering
whether to indict Dad? Son?
B. Financial Harm
No one disputes that lawyers cannot counsel or assist a client’s crime or fraud. Specific
exceptions to client confidentiality that allow disclosure to prevent, rectify, or mitigate
financial harm caused by a client, however, continue to generate substantial disagreement
among lawyers and the public, including the authors of this book. Yet perhaps because the
human willingness to lie can cause serious harm, some confidentiality exceptions exist when
clients seek to use lawyers to promote fraudulent activity.
For utilitarians, efficient operation of both a market economy and a democratic
government requires honesty. If everyone could use a lawyer to promote the client’s own
illegal deception, the market system, many aspects of government, and the legal system
itself would lose the confidence of its citizens. To prevent this erosion in confidence, some
lawyers maintain that they should be able to disclose activities of clients that seek to use the
lawyer’s services to perpetrate a fraud when the greater good would be promoted by
disclosure. Others argue that confidentiality remains an essential incentive for clients to
disclose their plans to lawyers, who are then in the best position to dissuade clients from
engaging in fraudulent activity. Focusing on trust and privacy, deontologists would agree
that clients should be encouraged to facilitate their plans through the client-lawyer
relationship. They would add, however, that when the client seeks to use the relationship to
violate another categorical imperative such as honesty, then the client’s right to
confidentiality has been lost. If the lawyer’s services unwittingly have been used to further
that fraud, the lawyer’s duty of reparation for her own acts also comes into play.
1. Fiduciary Duty Model Rules 1.0(d), 1.2(d), 1.6(b)(2) and (3), 1.13, 1.16,
2.1, 3.3, 3.9, 4.1, 8.4(c) RLGL §§ 67, 94
In re American Continental Corporation/Lincoln Savings & Loan Securities
Litigation
794 F. Supp. 1424 (D. Ariz. 1992)
198