Client Confidentiality · 6-12% of the exam
7.2.2Crime or fraud using the lawyer's services — prevent and rectify (Rule 1.6(b)(2)–(b)(3))
On this page
- Rule 1.6(b)(2) and (b)(3) — crime or fraud using the lawyer's services
Why
A lawyer's work can be picked up and used as a tool — documents drafted for one purpose turned into the instrument that pulls money out of strangers. The lawyer is then not a bystander to the fraud but part of its machinery, and the profession lets that lawyer speak rather than watch her own work keep doing damage.
Plain English
A lawyer may reveal information to prevent a client's crime or fraud that is reasonably certain to cause substantial injury to another's financial interests or property, and may reveal information to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result, or has resulted, from such a crime or fraud.
Both prongs require that the client used or is using the lawyer's services in furtherance of it. Both are permissive, and disclosure is limited to what the lawyer reasonably believes necessary.
Rule
Rule 1.6(b)(2) and (b)(3) — crime or fraud using the lawyer's services
- Prevent future harm (Rule 1.6(b)(2))
A lawyer may reveal 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 another, in furtherance of which the client has used or is using the lawyer's services.
- Prevent, mitigate, or rectify harm (Rule 1.6(b)(3))
A lawyer may reveal information to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's crime or fraud in furtherance of which the client used the lawyer's services.
- Comment [8]: this prong applies even after the crime or fraud is complete.
- Critical shared element
Both prongs require a services nexus — the client's misconduct must have leveraged (or must still be leveraging) the lawyer's own work to advance the wrongdoing. Independent client fraud unconnected to any assistance from the lawyer sits outside both prongs.
Both exceptions are permissive: the lawyer may disclose but is not required to.
Minimum disclosure: only as much as the lawyer reasonably believes necessary for the specific purpose.
Example 1
Ex. 1
Ana formed a corporate entity for Ben and drafted his fund's financial disclosure documents. She discovers Ben used those documents to solicit fraudulent investments; some investors have already wired funds, others are about to. Rule 1.6(b)(2) permits disclosure to stop ongoing solicitation; Rule 1.6(b)(3) permits disclosure to mitigate harm already done. Either disclosure must be limited to what Ana reasonably believes necessary. Walk the money both ways from Ana's documents — what has already been wired, and what has not.
Trap
Tip
Questions · 1
Q 01ch07-e05
Question 1 of 1 · Rule 1.6(b)(3)
Attorney drafted the offering circular and the subscription agreements for Client, who was raising money for a chain of veterinary clinics. Months after the raise closed, Attorney learned that Client had put invented occupancy figures into the circular and had sent that circular to every person who bought in. The money has been spent and no further units are being sold. Several buyers are weighing whether to sue in time to recover anything. Attorney wants to tell those buyers enough about the figures to let them act. Would it be proper for Attorney to reveal that information?
Keys 1 to 4 choose.