CRIES AND WHISPERS - ENVIRONMENTAL HAZARDS, MODEL RULE-1.6, AND THE ATTORNEYS CONFLICTING DUTIES TO CLIENTS AND OTHERS

This Article explores the attorney's duty of confidentiality in the co ntext of environmental dangers, examining the history and purpose of t he duty and the model ethical rule that controls issues of confidentia lity, Rule 1.6 of the Model Rules of Professional Conduct (''Model Rul es''). Important scholarship has criticized Model Rule 1.6, but that s cholarship has not explored the effects of the Rule in the area where the stakes are highest: environmental catastrophes. The Article analyz es the Rule's text, commentary, and legislative history and discusses the two predominant views of the attorney in our society, the attorney as champion and as officer of the court. Next, the Article considers these conceptualizations of the attorney's role as they relate to the issue of confidentiality and Rule 1.6, concluding that the view of the attorney as a champion pervades the Model Rules. This Article contrib utes to the debate regarding Model Rule 1.6 by charting the Rule's ine xorable momentum toward silence and questioning the social utility of such silence when a client's conduct threatens serious harm. The Artic le poses the issue of a domestic-Bhopal as a way of contextualizing th e duty and balance of considerations created by Model Rule 1.6. This c atastrophic context is set not to argue for an environmental exception to the Rule but rather to test the prohibition against disclosure in the extreme circumstance of widespread harm. An environmental disaster presents cumulative harm and thus calls for reassessment of the categ orical nature of Rule 1.6. Although grave harm can result from neglige nt or fraudulent conduct, and tort law may impose liability for creati ng these risks, such considerations do not result in a viable exceptio n under the ethical rule. Rule 1.6 includes an exception to the duty o f silence when a client threatens criminal conduct likely to result in serious harm to others. However, this exception fails to provide adeq uate protection for third parties because the crime requirement derail s consideration of the threatened peril. Finally, the Article proposes substitute language for the Model Rule to balance the dual risks of i mprovident disclosure and improvident silence.