A lawyer is representing a publicly traded company. The company's CEO informs the lawyer that a critical product line has a latent defect that could cause serious harm to consumers, and the company plans to suppress this information to avoid a stock market crash. The lawyer advises the CEO that this constitutes a criminal act and would result in substantial bodily harm and financial injury to consumers. The CEO refuses to disclose the defect. What is the lawyer's primary ethical obligation in this scenario?
- AThe lawyer must follow the CEO's instructions to maintain client confidentiality, even if it leads to harm.
- BThe lawyer must withdraw from representation and maintain strict confidentiality.
- CThe lawyer must report the CEO's intention to the SEC, as it involves a publicly traded company.
- DThe lawyer may disclose the information to prevent reasonably certain death or substantial bodily harm to consumers.
Show answer & explanationAnswer & explanation
Correct answer: D. The lawyer may disclose the information to prevent reasonably certain death or substantial bodily harm to consumers.
Model Rule 1.6(b)(1) permits a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm. The latent defect causing serious harm to consumers falls squarely within this exception. While withdrawal might also be appropriate, the ability to prevent physical harm is a primary ethical consideration and a direct exception to confidentiality.
Why the other options are wrong
- A. The duty of confidentiality has exceptions, and preventing serious physical harm is one of the most fundamental.
- B. Withdrawal alone does not prevent the harm and is not the primary obligation when physical harm is imminent.
- C. Reporting to the SEC might be a separate consideration, but the immediate and primary ethical obligation pertains to preventing physical harm under Rule 1.6(b)(1).
Confidentiality Exception: Prevent Bodily Harm
A lawyer MAY reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.
- It is permissive, not mandatory.
- Requires 'reasonably certain' death or 'substantial bodily harm'.
- Applies to future harm, not past harm.
- One of the strongest exceptions to confidentiality.
Memory trick: Harm (physical) or Help: when secrets can't keep.