Washington Lawyer - May/June 2024 - 43

SPEAKING OF ETHICS
mation " to the extent reasonably necessary to
prevent a criminal act that the lawyer reasonably
believes is likely to result in death or substantial
bodily harm absent disclosure of the
client's secrets or confidences by the lawyer. "
The exception similarly permits revelations necessary
to " prevent the bribery or intimidation of
witnesses, jurors, court officials, or other persons
who are involved in proceedings before a
tribunal. "
Though Rule 1.6(c) can provide an important
exception to the duty of confidentiality when
lawyers are faced with clients who have become
a risk to themselves or others, it is generally
applicable only in acute circumstances far
different from those in which a lawyer has been
diligently using internal reporting mechanisms
to encourage the client's compliance.
Similarly, Rule 1.6(d) permits a lawyer to reveal
confidential information to (1) prevent a client
from committing a crime or fraud that is " reasonably
certain to result in substantial injury to
the financial interests or property of another "
or (2) mitigate " substantial injury to the financial
interests or property of another that is reasonably
certain to result or has resulted from the
client's commission of the crime or fraud. " However,
the Rule 1.6(d) exception is applicable only
when the client " has used or is using the lawyer's
services to further a crime or fraud. " In
other words, this is a very narrow exception
that rests on a highly fact-dependent analysis
of the conduct of both lawyer and client.
A consideration for government attorneys is
Rule 1.6(e)(2)(B), which states: " A lawyer may use
or reveal client confidences or secrets ... if
[they are] a government lawyer, when permitted
or authorized by law. "
Determining whether a government lawyer is
eligible to take advantage of this exception to
Rule 1.6 depends entirely on an analysis of the
substantive law or regulation that would permit
or authorize the attorney to make the disclosure.
Even
when lawyers determine that they are
able to make a revelation consistent with Rule
1.6, an important question remains as to what
form that revelation may take. Generally, the
revelations permitted under exceptions to Rule
1.6 are limited. Disclosures may be made only
to the " extent reasonably necessary " to prevent
or redress the relevant harm. It is all but impossible
to imagine a situation in which, for example,
talking to a reporter and inviting the scrutiny
of the general public would be " reasonably
necessary " to redress the situation.
OTHER LIMITATIONS
Another ethical problem for lawyer whistleblowers
is the availability of remuneration under
some statutes, such as the federal False
Claims Act. When a lawyer stands to recover
money for revealing wrongdoing by a client,
there is good reason to believe that the lawyer
has a personal interest conflict, as defined by
Rule 1.7(b)(4). A personal interest conflict exists
when a lawyer's professional judgment on behalf
of a client " may be adversely affected by
the lawyer's responsibilities to or interests in a
third party or the lawyer's own financial, business,
property, or personal interests. " A lawyer
who reported confidential information about
his client externally and in return was eligible
to receive a monetary award would almost certainly
be in violation of this rule.
CONCLUSION
The Rules of Professional Conduct prioritize the
lawyer's duty of confidentiality, which is foundational
to the attorney-client relationship,
over the lawyer's ability to take unilateral action
to reveal wrongdoing by the client. Inevitably,
this leaves lawyers in Sarah's position with very
few options for reporting outside of the organization
to remediate a client organization's behavior.
However, the ability to report internally
and the duty to refuse to assist the client in
conduct that is criminal or fraudulent are powerful
tools at the lawyer's disposal to support
compliance by corporate clients.
D.C. Bar legal ethics counsel are available for
confidential inquiries on the Legal Ethics Helpline
at 202-737-4700, ext. 1010, or at ethics@dcbar.org.
NOTES
1 Rule 1.13(a).
2 See Rule 1.2(a) for a discussion of the distinction
between the objective of a representation
(which is determined by the client) and the
means by which the objective is attained (which
is determined by the lawyer in consultation with
the client).
3 See Hope C. Todd, " Shady Propositions: D.C. Rule
1.2(e), " Washington Lawyer (September/October
2020).
4 Rule 1.13(b).
5 Mandatory reporting obligations in statutes or
court orders generally trump the ethics rules.
6 One of the important exceptions to the duty of
confidentiality is Rule 1.6(e)(6), which allows Sarah
to reveal confidential information to a lawyer like
Joe " to the extent reasonably necessary to secure
legal advice about the lawyer's compliance with
law.... "
7 D.C. lawyers have been disciplined for violations
of Rule 1.6 in connection with a whistleblower
matter. In re Koeck, 178 A.3d 463 (D.C. 2018), and
related disciplinary cases.
8 A related exception not discussed in this article
is the lawyer's ability to use confidential
information defensively, consistent with Rule
1.6(e)(3). See Ethics Opinion 363 (October 2012);
Hope C. Todd, " Lawyer vs. Client: The Problem
With Keeping Secrets, " Washington Lawyer
(January 2013).
MANAGING MONEY
presented by the D.C. Bar Practice Management Advisory Service
How to handle the new client, the fee agreement
and the bank accounts.
Upcoming 2024 sessions:
June 10, September 26, and December 9
9 a.m. to 12:30 p.m.
You may also request a private class
for you and your staff.
www.dcbar.org/pmas
MAY/JUNE 2024 * WASHINGTON LAWYER 43
http://www.dcbar.org/pmas
Washington Lawyer - May/June 2024

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