Can Lawyers Still Keep a Secret?

Reprinted from:

December 2003

We start with the premise that full disclosure to a lawyer is essential in order for the lawyer to best assert and protect the interests of the client. Given that premise, the question is: Can the lawyer keep a secret? The answer: Not under new "snitch" rules!

With fewer lawyers and people trained in the traditions of law holding positions in our legislative bodies, there seems to be less concern about the privilege of confidentiality than ever before. Lawyers are in jeopardy of losing what distinguishes the profession from all others: confidentiality. One of the primary differences between accountants (and others) and lawyers has been that clients’ confidences remain just that, confidential! However, recent events have begun to erode that distinction.

Up to now, it's been very clear. Business & Professions Code §6068 (e) provides that the attorney must ".. maintain inviolate the confidence and at every peril to himself or herself to preserve the secrets, of his or her clients ..." Also, Model Rules of Professional Conduct §1.6 (a) provides that "A lawyer shall not reveal information relating to the representation of a client ..."

Now, here come the attacks:

  • Attorneys are obligated to report a client who is going to commit a serious crime dangerous to life or property. Of course, when and by whom is this determination to be made? After the fact (isn't 20/20 vision great?) and by a bar disciplinary committee (not a jury).

  • The Regulations under IRC §1099 provide that attorneys must report money received for the benefit of a client and then distributed through the clients' trust account. It's not enough to report the transfer of funds; the attorney is required to disclose the recipient (the client). This is an obvious erosion of the confidentiality provision and places the attorney in the middle of the power of the government (federal) and the licensing and disciplinary power of the state under the Rules of Professional Conduct.

  • The Justice Department claims that conversations between attorneys and suspects of terrorism are subject to eavesdropping.

  • The Sarbanes-Oxley Act provides that attorneys must report misfeasance of a corporate employee up the chain of corporate command. It's now being debated whether the attorney should be obligated to report out of the corporate entity (such as to the SEC) or resign the engagement.

  • Currently, the question must be asked whether attorneys are committing malpractice if they don’t advise clients to be selective about what they tell them. Too much information in the hands of the attorney may place them in the position of being an adversary of their own client, requiring the attorney to disclose "confidential" information to the government. On the other hand, failure to obtain all the information may make the attorney’s advice to the client inappropriate or actually wrong if all the circumstances had been known.

  • What is the root cause of the erosion of attorney-client privilege? One is the reduction in the number of lawyers and legally trained members of our governing bodies (state legislatures and Congress). Another cause is the mean-spirited attitude toward lawyers that has been pervasive throughout history because lawyers are the bastions of freedom and the rights of individuals. And, some resent the riches some (only a few) lawyers have received from tobacco and large class-action cases. Of course, these people fail to recognize the hundreds or thousands of cases that these same lawyers work on that produce no income; they fail to recognize that, without the contingency aspect of the representation, thousands of clients would never have their day in court. Or, maybe they do recognize that and want to stifle that representation in protection of their own special interests, i.e., the large corporations against which the actions are brought, and sometimes won.

  • It is a red herring to suggest that the image of lawyers is damaged when they fail to report a wrong (or potential wrong) that comes to their attention by virtue of their client representation. It is because of the different nature of the attorney engagement that lawyers receive such information. Are attorneys to be only gatekeepers for society or snitches for the government? Or are attorneys the protectors of individuals? In my legal education, I learned that we are the latter. If we become the former, there is no distinction between lawyers and plumbers, except the amount of education and the nature of the task we perform. And it doesn’t help the analysis to say that the lawyer is off the hook because there is another provision that says it’s o.k. to violate the client’s confidentiality if there is yet another law that tells us to do so. (See e.g., Model Rule §1.6(b)(4).

  • Unless the trend toward making lawyers agents of government is stopped and reversed, there will be little or no difference between lawyers and others. After all, other professionals are smart, other professionals can be problem-solvers, and other professionals can provide quality service. However, no other professional is clothed with the same, extensive confidentiality mantle. The Bar must come out of the closet, must refuse to be cowered by the pressure of government and demagogues, and must lobby to protect the right of confidentiality held by lawyers for the protection of clients.

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