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

for you to do anything other than withdraw.”
George listened carefully. The argument seemed too pat. Where was the place where
the rabbit went into the hat? Then it struck him: “Lewis, I admire you greatly and your
advocacy skills have never been greater. But frankly, you are wrong. This is a mandatory
disclosure situation under Model Rule 4.1. That’s why I must let the bank know they can’t
rely on my opinion.”
“You’re wrong again,” Lewis replied. “The mandatory disclosure provisions of Model
Rule 4.1 come into play only if the 1.6 exceptions allow disclosure, and disclosure is only
allowed ‘where reasonably necessary’ to prevent a fraud that is ‘reasonably certain to result
in substantial financial injury’ to the bank. The operative words here are ‘reasonably
necessary’ and ‘reasonably certain.’ Here disclosure is not ‘reasonably necessary’ because
your work is complete and therefore you are not assisting in a fraud. It’s also not
‘reasonably certain’ that the bank will be harmed, because Lonnie and Mercury will find a
way to get out of this mess.”
“I can’t believe you are telling me this. It’s pure sophistry, Lewis. Your reading of
‘reasonably’ is far too narrow. Surely, one can assist a person in the future through work
that was completed in the past. The fact that the work is completed renders the assistance
no more or less helpful, or actionable, I might add, than if it were taking place at the same
time as the client’s conduct. It’s also reasonably certain that the bank will lose its money. If
you were the bank, wouldn’t you want to know?”
But Lewis remained indomitable. “What you are saying is that by hiding behind an
overly broad interpretation of 1.6(b), you can conjure up an obligation to contact the bank,
and withdraw your opinion, and destroy your client. But the truth is all your clever
argumentation about aiding and abetting cannot obscure the fact that Rule 1.6 gives you
complete discretion whether to disclose. So when you do disclose, know that no one will
celebrate George’s observance of the rules. No, they will recognize a lawyer who breached
his confidentiality commitment to his client because he put his own interests first. George,
simply withdraw and give Lonnie one last chance to save his company, your once treasured
client.”
“If you would only persuade your client to do the right thing,” George replied, “we
wouldn’t be in this pickle. And if I thought just withdrawing would accomplish the
purpose, I would do that. But here I know that our silent withdrawal won’t do anything.
It’s not like the bank is calling us up each week to find out if we are still representing
Mercury. Under these special circumstances, we simply have no choice.”
Now Lewis stood, pressing his palms on his mammoth desk as he leaned forward for
emphasis. “You’re right about no choice. But you’re wrong about the result. You have no
business disclosing Arnold’s indiscretions to the bank. And if you do so, I can assure you
that Caldwell & Moore will find itself the subject of a malpractice suit for the damages
flowing from the bank’s cutting off the credit and calling the loan. If you do anything other
than withdraw, it will be a very sad day for all of us. Think about it, son. Think of Lonnie;
think of your firm; think of your fine reputation. I know you’ll do the right thing.”
Stunned, George slowly rose from the chair and, without a word or a gesture, shuffled
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