Ethical considerations can be addressed at individual and at societal levels. The way that individuals are affected by the conduct of others merits ethical consideration.

While the term ‘ethics’ is used in a wide variety of senses, its meaning consistently relates to an ‘ethos’ or ‘way of life.

Compliance means following rules because you have to; ethics is doing the right thing because you want to, or realize that it is in the best interest of others and society. An individual only interested in compliance will look for loop-holes in law, rules and regulations. If such an individual can accomplish his goals and stay technically compliant, he will do so even if his conduct causes harm.

An ethical individual, in contrast, is concerned about meeting the spirit of rules and laws, and mere compliance will not be sufficient if the conduct isn’t also good and right.

The Model Rules are described as a minimal ethics standard for the profession of law.

In 1983, the ABA affirmed its position that the attorney-client privilege should greatly restrict an attorney’s ability to disclose client misconduct.

In February 1983, the ABA House of Delegates met to discuss the then-proposed Model Rules of Professional Conduct(Model Rules). Proposed Model Rule 1.6 contained two provisions that many cast as a radical assault on the traditional scope of the attorney-client privilege.

The first provision would have allowed an attorney to reveal client confidences in order to prevent “substantial injury to the financial interests or property of another.”

The second provision sanctioned disclosure “to rectify the consequences of a client’s criminal or fraudulent act in the furtherance of which the lawyer’s services have been used.”

The House of Delegates rejected both proposals after a heated debate. The rejects provisions were not without a basis in ethical consideration. Those two ‘ethics’ provisions, which considered the impact on other people, would have prevented the confidentiality clause from undermining the constitutional rights of litigants. The removal created an ethical standard which completely ignored the existence of an opposing litigant.

Smoking_Finger_by_jeremiahjosephThe Model Rules serve to advance the duty of preserving a client’s confidences at the expense of those injured by a fraud – by the client or the lawyer.

Nevertheless, further debate on these provisions is not reported while states decided whether to adopt the Model Rules. The failure to fully consider the ethics or constitutionality issue within the states is unexplained.

The ABA’s failure to consider the impact of confidentiality on the opposition in a civil matter is a failure of any true ethical consideration. This is exacerbated as the ABA further neglected to consider the impact on the constitutional rights of either litigant. Where the confidentiality mandate can be further manipulated and leveraged to conceal the fraud by the judiciary, it undermines the integrity of the judiciary which is sacrificed to conceal the fraud upon the court. This leaves Rule 1.6 without any basis in ethics as it fails to consider the way others are affected.

The Rules of Professional Conduct are promoted as a ‘minimal ethical standard’ for lawyers by the Pennsylvania Supreme Court. In the case of Rule 1.6 Confidentiality, which is cross referenced within most of the other rules, minimal ethics is no ethics.

In 1991, the ABA again rejected the rectification provision.

There is no indication that the ABA ever considered the CONSTITUTIONALITY of Rule 1.6 Confidentiality of Information.

There is no indication that any state considered the lack of ETHICS or the CONSTITUTIONALITY of Rule 1.6 Confidentiality of Information.

The misguided excuses for attorney client privilege are left unsupported by reality. Every case is not a criminal case. Where attorney-client confidentiality obstructs truth and denies justice, the integrity of the courts and the entire judicial system is greatly diminished.

The most serious substantive problem in the Model Rules relates to lawyer-client confidences. Other serious substantive deficiencies relate to trial publicity, solicitation, prosecutors’ ethics, competence, client autonomy, the revolving door problem, and various other aspects of the lawyer-client relationship. Other substantial policy and constitutional concerns underlie confidentiality.

The Kutak Commission’s proposals regarding confidentiality are fundamentally inconsistent with the constitutional components of the adversary system, and with the values and policies to which they give meaning.

The ABA’s insistence on placing the duty of loyalty to the client before the duty of fairness to others has prevented the ethical codes from providing an effective solution to the dilemma.

Since 1983, the ABA has failed to present any effective solution to the dilemma
… the Model Rules have been promoted and enacted by every state. (1984 New Jersey to 2009 Maine)
… the enacted state “Rules of Professional Conduct” are incorporated into the federal circuit and district courts by LOCAL RULES
… the McDade-Murtha Amendment incorporates the state ‘Rules of Professional Conduct’ into practice for each government attorney.

The Model Rules have deliberately failed to recognize the effect of Rule 1.6 Confidentiality upon the opposition in civil litigation. Further, where an attorney manipulates confidentiality mandates to undermine the court’s jurisdiction and the Rule of Law, the integrity of the court becomes entangled in constitutional violations which cannot be addressed or resolved without violating confidentiality. The Rule of Law and Constitutional violations are ignored and neglected by the Department of Justice and the federal courts who must follow the state’s confidentiality law.

One Rule – stripped of ethics – enacted without any constitutional considerations – undermines the authority and integrity of the state and federal judiciary while preventing enforcement of constitutionally protected rights by the government – UNCONSTITUTIONAL – Improperly enacted – Repugnant – A NULLITY.

Dean Redlich of the New York University Law School assessed the ABA’s vote on the Model Rules by stating: ‘The practice of law, if done by sensitive people, creates financial risks and moral dilemmas…. These votes reflect a strong desire to eliminate those moral dilemmas by self-imposed rules that narrow or eliminate the choices a lawyer has.’

Client and Attorney misconduct poses an ethical dilemma which the legal profession has failed to resolve, and failed to consider while enjoying an autonomy from regulations and ethical rules. The ABA’s ethical and constitutional failure, demonstrated by the rejected provisions, were intentional and deliberate where they failed to address the matter for over 25 years. The unconstitutional result denying Americans of their constitutional rights and the protection of the law – Foreclosing on millions nationwide – Concealing human trafficking of thousands of children by judges in Luzerne County – Enabling destruction within the Family Courts.

The ABA knew of the unconstitutional effect of the Model Rules and Rule 1.6 Confidentiality of Information. The ABA still presented the Model Rules to the state Supreme courts to enact into law.

[ WE STILL DO NOT HAVE ANY EXPLANATION AT WHY IT WAS NECESSARY TO ENACT THE RULES INTO LAW. It turned the discretion of the lawyer to make an ethical decision into an aggressively enforced mandate of confidentiality. ]

The state Supreme Court does not have the authority to enact a law which affects the substantive rights of litigants which are protected by the state Constitution and the US Constitution.

Unconstitutional Rule 1.6 Confidentiality of Information was never properly enacted into law in any and every state.

Rule 1.6 is a NULLITY. Restore my constitutional rights and provide me with the equal protection of the law and prepare to address the actions of 20 judges of the Montgomery County Pennsylvania judiciary who have abused their power under color of law with their judicial independence undermined and lacking jurisdiction while denying my constitutional rights and ignoring the Rule of Law.

REFERENCE SOURCES: F. Krach, The Client-Fraud Dilemma: a Need for Consensus, 46 Md. L. Rev. 436 (1987)
Available at: http://digitalcommons.law.umaryland.edu/mlr/vol46/iss2/9

On Ethics and Expediency – The ABA’s Dubious Vote on Disclosure of Client Fraud

The Lawyers Allegiance- Priorities Regarding Confidentiality

Rectification of Client Fraud


The Kutak Model Rules v. the American Lawyers Code of Conduct January 1, 1981. In this document Monroe Freedman points to the ethical and constitutional problems caused by Rule 1.6 Confidentiality of the Model Rules. Failing to find a resolution in the end, the ABA ignored that there is any problem and provided the states with an unconstitutional law which violated substantive rights of litigants. The state supreme courts lacked the authority to enact the Model Rules as Rule 1.6 is repugnant to the Constitution of the United States and a nullity.

In effect, the Model Rules place the lawyer in the position of having to violate the client’s constitutional rights to effective counsel in order to conform to a “model” rule of conduct. This is both unnecessary and unjustifiable. Confidentiality is basic to effective lawyering. Thus, by undermining the confidentiality between the lawyer and the client, the Model Rules would destroy the most fundamental of constitutional rights.<./td>

No Comment.

Add Your Comment

%d bloggers like this: