11.06.02. Prevent Client from Committing a Crime/Fraud That is Reasonably Certain to Result in Substantial Injury to the Financial Interests or Property of Another

A lawyer may reveal client confidential information to “prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property” of a third person and “in furtherance of which the client has used or is using the lawyer’s services” (Rule 1.6(b)(2)).  This exception was added in 2003, in the wake of the Enron and WoldCom debacles.  There are two main points to make about this exception.  First, it focuses on the use of the lawyer’s services.  A client should not be able to use the lawyer’s services to commit a fraud and then prohibit a lawyer from taking steps to remedy it.  Second, this exception works together with other rules addressing client crime or fraud using (or seeking to use) their lawyer’s services:  a lawyer is prohibited from counseling or assisting the client in conduct the lawyer knows is criminal or fraudulent (Rule 1.2(d)); a lawyer must withdraw if the lawyer knows that the client is attempting to use the lawyer’s services to engage in a crime or fraud (Rule 1.16(a)(1)); and, a lawyer may disclose wrongdoing where the client is an organization in certain situations (Rule 1.13(c)).[1]

[1] ABA Rule 1.6, Comment [7].