"Michael Clayton" (2007): Closing scene: breach of duties of loyalty & confidentiality



In the film's closing climactic scene, Michael Clayton (George Clooney) is wired and has a conversation with his client's GC (Tilda Swinton) in which he solicits and obtains a payoff from her to cover up criminal activity by her (on behalf of the entity), of which he has become aware.  She in effect both confesses and agrees to the payoff, and is promptly arrested.  In order for this event to occur, Clayton has necessarily breached confidentiality in the most extreme way, by sharing with law enforcement what he has learned about past crimes by the client.  This is the most strongly prohibited conduct a lawyer can engage in. (MR 1.6(a))  It does not appear that any exception applies; this is simply a "sting" operation conduct by the client's own lawyer.








Comments

  1. Disclaimer, I have not seen this movie in its entirety, my comment is based solely on this clip. Should this storyline have occurred in CA...

    While no exception may exist under MR 1.6(a), I would argue that CA RPC 3-100(b) provides the necessary exception that would lessen or preclude entirely any disciplinary action ("A member who reveals information as permitted under this rule is not subject to discipline."). The exception is a narrow one but applies "when a member reasonably believes that disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in the death of, or substantial bodily harm to an individual." Any disclosure made to the police here must be no more than what is reasonably necessary to prevent the intended criminal act.

    Since Clayton is reasonably in fear of his own imminent death (guessing car bomb here since Clayton references meeting in his car), it is reasonable that he would divulge/disclose confidential information to the police in order to protect himself from death or substantial bodily harm. Clayton must, prior to disclosure, have made a good faith effort to talk the party out of committing the crime intended. This is a bit of a sticky situation since it is Clayton's own death that is imminent.

    Gina Thomson

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  2. This is a great scene.

    I used to work for a firm that handled criminal defense cases in California.

    My boss would tell me that in the event of an imminent crime, I should call the police. Several years ago, a client of his informed him over the phone that he intended to commit an assault against someone who had filed a complaint against said client at work. The client was on his way to his coworker's house, and my boss promptly contacted the police.

    Interestingly, the reason why I asked what to do in the event of violence in the first place was because I was handling my first client intake alone.

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  4. Here, the attorney-client privilege exists between Clayton and his client, and Clayton breached his loyalty. “Relation of attorney and client is one of the highest confidences, and, as to professional information gained while this relation exists, attorney’s lips are forever sealed…” Stockton Theatres v. Palermo (California). Here, while representing his client, Clayton gained professional information about her and even had it written in a memo—his lips should be sealed.
    However, the exception of 1.6(b)(1) of the ABA Model Rules may apply: to prevent reasonably certain death or substantial bodily harm. Here, Clayton was trying to prevent reasonably certain death or substantial bodily harm (of himself or anyone) because the client has killed people, and Clayton says, “You’re gonna kill me?” This implies that his life is in danger. Therefore, he could reveal the information about her.

    Justyne

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  5. In this scenario, even though there is no clear exception under the model rules, I agree with Mr. Mendez that there may be an exception under the CA Rules of Professional Conduct 3-100 (b). This rule states that a member is not required to reveal confidential information, but may reveal information to the extent that the member reasonably believes that the disclosure is necessary to prevent a criminal act that the member reasonably believes will result in death or substantial harm to an individual. In this case, the individual who may be harmed is the attorney. Attorneys must have some type of way to protect themselves against clients who may want to harm them, or someone in which the attorney has knowledge of. This also keeps clients from using attorney-client privilege as a scapegoat.

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  6. From what I could find, the firm is from New York. The NY CLS Rules Prof Conduct R 1.6 exceptions to disclosure may apply.
    (b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:(1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime; (3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud; (4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or(ii) to establish or collect a fee; or(6) when permitted or required under these Rules or to comply with other law or court order.

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