{"id":51657,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/debate-over-an-aba-legal-ethics-rule-underscores-lawyers-competing-obligations-to-keep-secret-and-to-disclose.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"debate-over-an-aba-legal-ethics-rule-underscores-lawyers-competing-obligations-to-keep-secret-and-to-disclose","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/debate-over-an-aba-legal-ethics-rule-underscores-lawyers-competing-obligations-to-keep-secret-and-to-disclose.html","title":{"rendered":"Debate Over An Aba Legal Ethics Rule Underscores Lawyers’ Competing Obligations To Keep Secret And To Disclose"},"content":{"rendered":"\n
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DEBATE OVER AN ABA LEGAL ETHICS RULE UNDERSCORES LAWYERS’ COMPETING OBLIGATIONS TO KEEP SECRET AND TO DISCLOSE <\/h1><\/td>\n <\/tr>\n

By MICHAEL C. DORF<\/h2><\/a><\/td>\n <\/tr>\n

Thursday, Aug. 09, 2001<\/td>\n\n <\/tr>\n <\/table>\n \n

At this year’s annual meeting of the American Bar Association, the House of \nDelegates approved a number of amendments to the Model Rules of Professional Conduct. \nAlthough the Model Rules have no binding force, they are nonetheless important, \nbecause most state bars’ disciplinary bodies have adopted them in one form or \nanother. Changes approved by the ABA are likely to become official policy in many \nstates.<\/p>\n

The most attention-grabbing of the changes prohibits attorneys from having \n“sexual relationships with a client unless the sexual relationship predates the \nformation of the client-lawyer relationship.” Take that, Arnie Becker and Ally \nMcBeal!<\/p>\n

Another change, while less sexy, is perhaps of greater symbolic importance \nbecause of what it says about the legal profession’s understanding of how to balance \nits obligations to clients and the public. This change amends Model Rule 1.6, \ngoverning disclosure of a client’s confidential information.<\/p>\n

The Rule Governing Client Confidences<\/b><\/p>\n

The basic injunction of Model Rule 1.6 is clear: absent the client’s consent, \na lawyer must keep the client’s secrets. The old version of the rule makes a limited \nexception, however, permitting attorneys to disclose information without the client’s \nconsent, in order “to prevent the client from committing a criminal act that the \nlawyer believes is likely to result in imminent death or substantial bodily harm.”<\/p>\n\n \n \n
<\/td>\n\"[The<\/span><\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/table>\nSo suppose one day your client Ralphie drops by to thank you for helping him \nwith a big public construction contract. As he’s leaving your office, Ralphie \nmentions that he’s planning to “whack that punk Jackie.” Let’s say you have a \ntwinge of conscience. No problem. Model Rule 1.6 lets you warn Jackie, or better \nyet for your own safety, place an anonymous call to the FBI.\n

\nBut now suppose your client is the Nukem Corporation. The Nukem CEO tells you \nthat his employees Larry, Curly, and Mo accidentally spilled some leftover plutonium \nin an open field behind the main power plant. You tell him that he’s obliged to \nnotify the Environmental Protection Agency and immediately start a massive cleanup \nand containment effort. “Gee, I wish I could,” the CEO replies. “But that would \nreally hurt our quarterly statement. Who’s going to know, anyway?” You use all \nof your persuasive skills but to no avail. The company will do nothing about the \nspill.<\/p>\n

Your pesky conscience bothers you again. You know that improperly discarded \nplutonium will eventually find its way into groundwater, where it will have terrible \neffects on plants, animals, and humans. However, the contamination process may \ntake years to come to light, and so the death or substantial bodily harm that \nwill result from Nukem’s dumping is not “imminent.” Under the version of Model \nRule 1.6 that was in effect until this week, you can’t disclose.<\/p>\n

The Change to Rule 1.6, and the Arguments Against It<\/b><\/p>\n

The ABA to the rescue! The new version of Model Rule 1.6 eliminates the imminence \nrequirement, so that an attorney can disclose client information “to prevent reasonably \ncertain death.” If you practice law in a state that adopts the amendment, you \ncan stop the poisoning \u0097 since the deaths you foresee eventually resulting \nfrom the spill are, while not “imminent,” still “reasonably certain” to occur \nin the future.<\/p>\n\n\n

Despite the obvious moral appeal of broadening the scope of permissible disclosure \nunder Model Rule 1.6, critics worry that it will undermine the attorney-client \nrelationship. The core confidentiality requirement of Model Rule 1.6 \u0097 like \nits counterpart in evidence law, the attorney-client privilege \u0097 is based \non the premise that in the long run, the public benefits when clients can speak \nfrankly with their lawyers, even if in some situations secrecy leads to injustice \nor harm.<\/p>\n

Confidentiality serves the public interest, it is said, because most clients \nare basically law-abiding. As the official commentary to the new version of Model \nRule 1.6 notes, “Almost without exception, clients come to lawyers in order to \ndetermine their rights and what is . . . deemed to be legal and correct. Based \nupon experience, lawyers know that almost all clients follow the advice given, \nand the law is upheld.” If that is so, the critics of the amendment to Rule 1.6 \ncharge, the attorney’s confidentiality obligation should not be watered down.<\/p>\n

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

Arguments in Favor of the Change to Rule 1.6<\/b><\/p>\n

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

Moreover, supporters of the amendment contend, the complexity of the law means \nthat people will continue to seek legal advice despite the rule change. Modern \nbusinesses must negotiate a tangle of laws and regulations concerning anti-competitive \nbehavior, the environment, handicapped access, labor relations, workplace safety, \nand many more features of their operations. It is a practical impossibility to \ndo so without consulting legal experts.<\/p>\n

Indeed, even individuals embroiled in the legal system quickly discover that \nit is far too complex for the typical amateur. If a lawyer who represents himself \nhas a fool for a client, one can only imagine what kind of client a layman who \nrepresents himself has.<\/p>\n

In short, neither corporations nor individuals, supporters of the new version \nof Rule 1.6 suggest, will truly be deterred from consulting lawyers by the amendment.<\/p>\n

What’s Really at Stake?<\/b><\/p>\n

The arguments concerning the amendment to Model Rule 1.6 purport to be about \nan empirical question: How will clients act under the new rule? Yet neither side \nputs forward evidence about how clients respond to different confidentiality rules \n\u0097 suggesting that the true root of the debate is philosophical, not empirical.<\/p>\n

To be sure, the handful of empirical studies of the issue that have been conducted \nare largely inconclusive. And more conclusive studies might change the minds of \nsome \u0097 especially if they had dramatic results, demonstrating that in the \nwake of an amendment, there would either be wide-scale shunning of legal advice, \nor no change at all in the frequency with which lawyers are consulted. Still, \none senses that few of the principals in this debate would change their positions \neven were they confronted with hard data.<\/p>\n

At bottom, the debate over Model Rule 1.6 is a debate between which of two \ncompeting roles of the lawyer to emphasize: zealous advocate versus officer of \nthe court.<\/p>\n

In our legal system, lawyers play both of these roles. A lawyer must help his \nclient to put on as strong a case as possible, but a lawyer may not suborn perjury. \nA lawyer must help the client achieve the client’s goals, but a lawyer may not \nassist a client in committing a crime. A lawyer must keep his client’s secrets \nbut not . . . what exactly?<\/p>\n

That is the particular question at stake in the debate over Model Rule 1.6, \nwhich now moves to the states. Short of making the confidentiality rule absolute \nor abolishing it entirely, any qualification of the rule’s secrecy requirement \nwill necessarily reflect a compromise. As a result, any resolution of this debate \nwill be open to the charge that it goes too far \u0097 as well as the converse \ncharge that it does not go far enough. And so lawyers, as a group and as individuals, \nwill continue to struggle to reconcile the irreconcilable.<\/p>\n<\/span> \n\n

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\n\n\n<\/a>\nMichael C. Dorf is Vice Dean and Professor of Law at Columbia University.\n\n

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