History of Exceptions to Confidentiality -- Part 1

1908 ABA Canons of Professional Ethics

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) [Zitrin pp. 193-98]

-Broader than 1974 amendment to DR 7-102
--no exception for privileged info

-But also narrower:than 1974 amendment to DR 7-102
--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)

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)