Legal Ethics: Discretion and Utility in Model Rule 1.6

No other profession requires practitioners to identify so closely and completely with the interests and confidences of their clients, as in the legal profession. Unlike doctors, priests, rabbis and other professionals, the lawyer is an adviser but also an advocate. Rule 1.6 is a major flaw in the legal profession's history of self-discipline. This rule fails the test of logic because the concept of discretion which it reflects is self-contradictory.

This rule is a crude form of utilitarianism and should be reformulated to require disclosure whenever clients have no right to confidentiality and their conduct would constitute unjustified aggression or seriously invade the interests of others. In sum, Rule 1.6 should be amended to reflect common ethical principles and the important policies that would protect confidentiality.