DEBATE OVER AN ABA LEGAL ETHICS RULE UNDERSCORES LAWYERS' COMPETING OBLIGATIONS TO KEEP SECRET AND TO DISCLOSE

By MICHAEL C. DORF

Thursday, Aug. 09, 2001

At this year's annual meeting of the American Bar Association, the House of Delegates approved a number of amendments to the Model Rules of Professional Conduct. Although the Model Rules have no binding force, they are nonetheless important, because most state bars' disciplinary bodies have adopted them in one form or another. Changes approved by the ABA are likely to become official policy in many states.

The most attention-grabbing of the changes prohibits attorneys from having "sexual relationships with a client unless the sexual relationship predates the formation of the client-lawyer relationship." Take that, Arnie Becker and Ally McBeal!

Another change, while less sexy, is perhaps of greater symbolic importance because of what it says about the legal profession's understanding of how to balance its obligations to clients and the public. This change amends Model Rule 1.6, governing disclosure of a client's confidential information.

The Rule Governing Client Confidences

The basic injunction of Model Rule 1.6 is clear: absent the client's consent, a lawyer must keep the client's secrets. The old version of the rule makes a limited exception, however, permitting attorneys to disclose information without the client's consent, in order "to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm."

[The HORROR]
So suppose one day your client Ralphie drops by to thank you for helping him with a big public construction contract. As he's leaving your office, Ralphie mentions that he's planning to "whack that punk Jackie." Let's say you have a twinge of conscience. No problem. Model Rule 1.6 lets you warn Jackie, or better yet for your own safety, place an anonymous call to the FBI.

But now suppose your client is the Nukem Corporation. The Nukem CEO tells you that his employees Larry, Curly, and Mo accidentally spilled some leftover plutonium in an open field behind the main power plant. You tell him that he's obliged to notify the Environmental Protection Agency and immediately start a massive cleanup and containment effort. "Gee, I wish I could," the CEO replies. "But that would really hurt our quarterly statement. Who's going to know, anyway?" You use all of your persuasive skills but to no avail. The company will do nothing about the spill.

Your pesky conscience bothers you again. You know that improperly discarded plutonium will eventually find its way into groundwater, where it will have terrible effects on plants, animals, and humans. However, the contamination process may take years to come to light, and so the death or substantial bodily harm that will result from Nukem's dumping is not "imminent." Under the version of Model Rule 1.6 that was in effect until this week, you can't disclose.

The Change to Rule 1.6, and the Arguments Against It

The ABA to the rescue! The new version of Model Rule 1.6 eliminates the imminence requirement, so that an attorney can disclose client information "to prevent reasonably certain death." If you practice law in a state that adopts the amendment, you can stop the poisoning — since the deaths you foresee eventually resulting from the spill are, while not "imminent," still "reasonably certain" to occur in the future.

Despite the obvious moral appeal of broadening the scope of permissible disclosure under Model Rule 1.6, critics worry that it will undermine the attorney-client relationship. The core confidentiality requirement of Model Rule 1.6 — like its counterpart in evidence law, the attorney-client privilege — is based on the premise that in the long run, the public benefits when clients can speak frankly with their lawyers, even if in some situations secrecy leads to injustice or harm.

Confidentiality serves the public interest, it is said, because most clients are basically law-abiding. As the official commentary to the new version of Model Rule 1.6 notes, "Almost without exception, clients come to lawyers in order to determine their rights and what is . . . deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld." If that is so, the critics of the amendment to Rule 1.6 charge, the attorney's confidentiality obligation should not be watered down.

Their argument goes as follows: Permitting disclosure in the small number of cases in which disclosure is necessary to prevent future death or substantial bodily harm may seem like the right thing to do if one only thinks about those cases, but it does greater harm in the long run. Faced with uncertain and thus unreliable protection for their confidences, people will hesitate to seek legal advice; then, not knowing their legal obligations, they will violate laws with which they would have complied had they sought legal counsel.

Arguments in Favor of the Change to Rule 1.6

Supporters of the expanded disclosure provision respond that these fears are overstated. For one thing, both the old and new versions of Model Rule 1.6 concern the circumstances under which an attorney is permitted to disclose client information. There are almost no circumstances under which a lawyer is required to disclose client information. Clients worried about disclosure will be able to seek out attorneys who place a much greater value on client loyalty than on satisfying contrary twinges of conscience.

Moreover, supporters of the amendment contend, the complexity of the law means that people will continue to seek legal advice despite the rule change. Modern businesses must negotiate a tangle of laws and regulations concerning anti-competitive behavior, the environment, handicapped access, labor relations, workplace safety, and many more features of their operations. It is a practical impossibility to do so without consulting legal experts.

Indeed, even individuals embroiled in the legal system quickly discover that it is far too complex for the typical amateur. If a lawyer who represents himself has a fool for a client, one can only imagine what kind of client a layman who represents himself has.

In short, neither corporations nor individuals, supporters of the new version of Rule 1.6 suggest, will truly be deterred from consulting lawyers by the amendment.

What's Really at Stake?

The arguments concerning the amendment to Model Rule 1.6 purport to be about an empirical question: How will clients act under the new rule? Yet neither side puts forward evidence about how clients respond to different confidentiality rules — suggesting that the true root of the debate is philosophical, not empirical.

To be sure, the handful of empirical studies of the issue that have been conducted are largely inconclusive. And more conclusive studies might change the minds of some — especially if they had dramatic results, demonstrating that in the wake of an amendment, there would either be wide-scale shunning of legal advice, or no change at all in the frequency with which lawyers are consulted. Still, one senses that few of the principals in this debate would change their positions even were they confronted with hard data.

At bottom, the debate over Model Rule 1.6 is a debate between which of two competing roles of the lawyer to emphasize: zealous advocate versus officer of the court.

In our legal system, lawyers play both of these roles. A lawyer must help his client to put on as strong a case as possible, but a lawyer may not suborn perjury. A lawyer must help the client achieve the client's goals, but a lawyer may not assist a client in committing a crime. A lawyer must keep his client's secrets but not . . . what exactly?

That is the particular question at stake in the debate over Model Rule 1.6, which now moves to the states. Short of making the confidentiality rule absolute or abolishing it entirely, any qualification of the rule's secrecy requirement will necessarily reflect a compromise. As a result, any resolution of this debate will be open to the charge that it goes too far — as well as the converse charge that it does not go far enough. And so lawyers, as a group and as individuals, will continue to struggle to reconcile the irreconcilable.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

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