CBA Record Jan-Feb 2021

introduction of ESG elements. In fact, the ABA Model Rules and various state rules, including Illinois, already do this. As noted above, Rule 1.6 allows breach of confidentiality if a pollution event might result in death or debilitating disease. Rule 1.6(b) and (c) allow, and in some circum- stances require, a lawyer to disclose that the client is going to commit a crime or fraud or inflict bodily harm. As another example, Rule 3.3 permits, and in some case requires, a lawyer to notify a tribunal if the client is giving false testimony – applying a balancing test set out in in the Comments to Rule 3.3: “The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(f ). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.” The Rules also provide other instances in which the lawyer is required to give prefer- ence to stakeholders other than the client in the interest of justice and the quality of the legal system. Perhaps it is time to add to these instances.

LEGAL ETHICS BY JOHN LEVIN Should the Client’s Interest be Paramount? T hose of us involved with corporate law cannot help but be aware of the ground-shifting developments in

innocent third parties who may be injured? The following comment to Illinois Rule 1.6 - Confidentiality of Information, addresses this situation: “[A] lawyer who knows from informa- tion relating to a representation that a client or other person has accidentally discharged toxic waste into a town’s water must reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims.” It seems that the interests of the client prevail unless the innocent third party gets very sick or dies. Perhaps there should be a lesser test – like “suffers any harm.” In the second example, a reported case, the lawyer’s client is convicted of murder and has told the lawyer where the victim’s body is hidden. The lawyer was foreclosed from telling the surviving family where the body is located until the client gives permis- sion or dies. The meaningless confidence of the convicted client takes precedence over the interest of the grieving family. What if (now for the unfamiliar ideas) the governing bodies of the legal profession incorporate ESG considerations into the practice of law? Simply put, if the repre- sentation of the client causes a significant level of harm to some other stakeholder, the lawyer should not have to – in fact should not – give precedence to the client. Before crumpling up this column and throwing it out the window (or clicking away from the digital page), the sugges- tion is not to obviate the attorney-client relationship. The idea is to create a different balance between the interests of the client and the interests of other parties by the

the application of environmental, social, and governance (ESG) factors in corporate management and investment. The days are waning when management’s sole concern was the interest of the shareholders. Boards of directors may now be expected – if not required – to address a wide range of ESG issues affecting other stakeholders in addi- tion to profitability for the shareholders. As lawyers we should also be aware that our various governing bodies are in the process of reviewing the rules of our profession, often with the intent of making legal services more transparent and available to underserved populations. This column has previously discussed the worthwhile work being done by the CBA/CBF Task Force on the Sustainable Practice of Law & Innovation. So how are the two above paragraphs related? Here we are going to drift into some unfamiliar ideas. Under the Rules of Professional Con- duct and fiduciary law, a lawyer’s primary obligation is to the client. There are instances (some of which has been discussed over the years in this column) where the application of this primary obligation has caused injury to third parties. Consider the following two examples: In the first, a client discharges a dangerous – though not toxic – substance into the water supply. Does the lawyer’s obligation lie with protecting the confidences of the client or with protecting John Levin is the retired Assis- tant General Counsel of GATX Corporation and a member of the CBARecord Editorial Board.

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42 January/February 2021