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

warmly, an approach George found both welcoming and intimidating: he knew Lewis was
planning to charm him into acquiescence.
“This is all very sad stuff, George. It’s terrible that your friend, Lonnie, and the others
at Mercury have been so injured by Arnold’s unfortunate conduct. Now all we can do is
make sure this doesn’t snowball into a total disaster. I am sure you agree with Lonnie and
the others that, despite the fact that these contracts are for a shorter time than we thought,
Mercury is likely to obtain renewals of contracts because of its reputation for speedy, lowcost
service.”
“But not once they find out about the bribes,” George rejoined. “At that point,
Mercury may not be eligible even to bid on the renewals.”
“That’s true if you go blabbing about. But the way this is structured,” Lewis continued,
“no one has to find out — as long as you recognize your professional responsibility not to
violate Model Rule 1.6.”
“Violate Rule 1.6. I should say not. As you know all too well, because you led the
opposition to the change, I am totally free to disclose this information to prevent, mitigate
or rectify a client fraud in which the lawyer’s services have been used.”
“I know. I know. Damn ABA panicked in the face of threats from the SEC, and gave
into those who would turn lawyers into cops, letting them arrest their own clients, of all
things. But at least they didn’t require you to disclose. It’s only permissive. So you still have
a chance to demonstrate your loyalty to your old friend, I mean your former friend.”
George leaped at the opening Lewis had left him. “You know it isn’t that easy. Our
firm told the bank that these contracts were enforceable in accordance with their terms
when, in fact, we didn’t even have the version of the contracts with the correct number of
years in front of us.”
“Exactly my point,” Lewis interrupted. “If you give discretion to lawyers to breach
confidentiality then when lawyers are faced with difficult choices they will put their own
interests ahead of their clients.”
“Back then I agreed with you,” George responded. “I’m not so sure now that I’ve been
betrayed by Arnold Plinger.”
“You’ve been betrayed! I should say not.” Lewis was shaking now. “Your client has been
betrayed by Arnold, and now is about to be betrayed by you. You can choose and you
better choose non-disclosure.” Lewis was pulling out all the stops.
“Lewis, you might be right if I had discretion. And under Rule 1.6 it appears I do. But
not when you read Rule 4.1. That rule requires me to disclose to prevent assisting a client
fraud. I have no choice but to disclose.”
“But you are not aiding and abetting a fraud. This fraud already took place. I do not see
how anything your firm does from this day forward will assist your former client in
committing a fraud. Caldwell & Moore will be asked to do nothing having anything to do
with the financial transactions — the loan, its extension, or its repayment. All of that will
now be undertaken by others. Your firm will be completely shielded from all contact with
any transaction. The only hint of Caldwell & Moore’s existence in those ongoing
transactions (whatever they may be) is your once-issued opinion. It simply is not necessary
217