Board opposes ABA plan to weaken client confidentiality.

A proposed change to the ABA Model Rules that would weaken attorney-client confidentiality has been opposed by The Florida Bar Board of Governors.

The board agreed with former Bar Presidents Ben Hill, Florida's ABA state delegate, and Steve Zack, a member of the ABA House of Delegates, that amendments to Model Rules 1.6(b)(2) and (3) would undermine the values of the legal profession. The board took the unusual step of instructing its delegates to oppose the amendments.

The changes, suggested by the ABA Task Force on Corporate Responsibility, were debated by the House two years ago and rejected by four votes, but are expected to again be proposed at the ABA's August Annual Meeting.

Hill sent a letter to the Bar asking the issue to be addressed and Zack appeared at the board's May 30 meeting to discuss that and other ABA issues.

"It is my sincere hope The Florida Bar will continue to oppose adoption of the rule, specifically subparagraphs (b)(2) and (b)(3), which provide that a waiver of the attorney-client privilege may occur under certain circumstances," Hill wrote. "I do not believe that circumstances are sufficient to warrant a waiver of attorney-client privilege and further that if a waiver is permitted under these circumstances, it can only lead to total distrust between the lawyer and his/her client.

"Further, (b)(2) and (b)(3) force the attorney to serve as a 'policeman or policewoman' as he or she works with the client."

Zack said the issue was the most significant to come before the House of Delegates since the multidisciplinary practice (MDP) issue several years ago. He said the MDP appeared ready to pass until the Bar took the lead and successfully opposed those changes.

"The proposal is an attempt to review the client confidentiality rights and the public's right to be protected from wrongful acts," Zack said. "This is not a simple debate, but it's a necessary debate and whatever you decide, you delegates need to be aware of."

Model Rule 1.6 provides that a lawyer must keep client confidences, except to prevent a death or substantial bodily harm, to comply with a law or court order, if the lawyer needs the information to defend a legal action involving the client, or to ensure compliance with ethical rules.

The amendments would add two new subsections, which would allow disclosure:

* "To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or...