In Defense of Client-lawyer Confidentiality . . . and Its Exceptions . . .
| Publication year | 2021 |
| Citation | Vol. 81 |
81 Nebraska L. Rev. 1320. In Defense of Client-Lawyer Confidentiality . . . and Its Exceptions . . .
1320Susan R. Martyn(fn*)
In Defense of Client-Lawyer Confidentiality . . . and Its Exceptions . . .
TABLE OF CONTENTS
I. Introduction ........................................... 1320
II. Defending Confidentiality .............................. 1321
A. Utilitarian Justifications .......................... 1323
B. Deontological Justifications ........................ 1328
III. Defending the Exceptions ............................... 1330
A. Client Consent, Express or Implied .................. 1331
B. Physical Harm ....................................... 1335
C. Financial Harm ...................................... 1338
D. Seeking Advice ...................................... 1343
E. Self Defense ........................................ 1344
F. Other Law ........................................... 1346
IV. Conclusion .............................................. 1349
I. INTRODUCTION
Two recent events have occasioned reconsideration of the purpose of lawyer-client confidentiality and its exceptions. The Restatement (Third) of the Law Governing Lawyers, completed after twelve years of drafting and debate,(fn1) reexamined both the fiduciary duty of confidentiality, found in both the lawyer professional codes and the law of agency, and the evidentiary client-lawyer privilege, which blocks disclosure of client confidences in litigation. Just as the Restatement process was concluding, the American Bar Association established the Ethics 2000 Commission to reexamine the lawyer codes and recom-
1321mend revisions to the Model Rules of Professional Conduct.(fn2) Most of the final revisions recommended by the Commission have now met with approval in the ABA House of Delegates, which in turn has led over forty jurisdictions to consider these amendments as a template for their own professional codes.(fn3) The Restatement and Ethics 2000 undertakings have resulted in a remarkably similar consensus about the appropriate justifications for client-lawyer confidentiality and the equally important rationales that justify exceptions to the professional obligation.
In this Article, I examine the reasons that confidentiality remains a bedrock fiduciary obligation for lawyers as well as the foundation for the attorney-client privilege. In Part II, I trace the history and purpose of this professional obligation, revealing two main moral justifications, efficient operation of the legal system and the promotion of trust and privacy in the client-lawyer relationship. In Part III, I examine these same rationales as the justification for exceptions to the fiduciary duty, focusing on the exceptions articulated by both the Restatement and the revised Model Rules. I conclude that the current scope of confidentiality protection and most of the exceptions created by these two bodies of law accurately implement the central purposes of confidentiality. Each jurisdiction therefore should seriously consider revising its own lawyer codes and common law to recognize these exceptions and their underlying purposes.
II. DEFENDING CONFIDENTIALITY
The recognition of confidentiality as a core professional obligation first arose in cases applying the attorney-client privilege, which Wigmore dates to the seventeenth century.(fn4) In the twentieth century, the idea that lawyers were forbidden from disclosing client confidences in litigation created the basis for the recognition in agency law of a broader professional obligation of confidentiality as an integral part of the fiduciary duty of loyalty that lawyer-agents owe to client-princi-pals.(fn5) Beginning about 100 years ago, both the attorney-client privilege and the agency duty of confidentiality became incorporated into
1322lawyer codes as the obligation not to divulge the confidences and secrets of a client.(fn6)
Throughout this legal development, two distinct but complementary reasons have been put forward to justify client-lawyer confidentiality. Each is tied to a different philosophical tradition, and each provides some, but not complete guidance in understanding this professional obligation.(fn7) Both justifications begin with an understanding of a reciprocal inequality inherent in the client lawyer relationship. On the one hand, clients have the power to select, supervise and fire lawyers, and to decide when a lawyer acts in the client's best interests. On the other, lawyers have knowledge and skill that enables them to use or abuse client information for their own or others' benefit.(fn8)
A utilitarian justification for protecting confidentiality focuses on the consequences of such a legal protection. Such a rationale usually, but not always, concludes that confidentiality promotes the greatest good for the greatest number, because it encourages clients to give lawyers facts, which are essential to making the legal system work. A utilitarian rationale also promotes the use of lawyers and the legal system as an efficient and fair alternative to other means of resolving disputes. The difficulty of measuring the full consequences of confidentiality or its exceptions makes this rationale less than complete. Nevertheless, utilitarian reasoning can be used to focus on competing consequences and as a rough estimation of their relative importance. However, in searching for the greatest good for the greatest number, utilitarians can ignore or discount unjustified harm to a minority of those who do not benefit. For this reason, most moral philosophers supplement utilitarian reasoning with an understanding of fundamental rights that protect individuals from unjust oppression.
1323The moral theory most often relied on to support a concern for individual human rights is deontological. This rationale stems from the proposition that a morally correct action or rule conforms to some principle of duty, which can exist independent of consequences. Actions are blameworthy if they violate these duties. According to this explanation, confidentiality promotes respect for human autonomy by guaranteeing trust and privacy in the client-lawyer relationship. Such a justification also mirrors other rights-based justifications that promote individual respect in our society. Deontological theories have the advantage of focusing on individual rights and are especially helpful in assessing whether or not people are treated fairly. They provide less guidance, however, about what to do when two fundamental values collide because they offer little help in deciding which duty is stronger.
Both of these philosophical justifications can be found in the legal literature justifying the obligation of client confidentiality as well as the cases and rules that justify exceptions to the doctrine. Examining these rationales can help us better understand current law, the exceptions still under debate, and the issues yet to come.(fn9)
A. Utilitarian Justifications
Utilitarians begin their analysis of morally right action by counting consequences and searching for the greatest good for the greatest number. Jeremy Bentham and John Stuart Mill, for example, believed that the ethical validity of conduct should be determined by its effect on the aggregate happiness. With respect to client-lawyer confidentiality, utilitarians form two groups: the true believers and the naysayers. The true believers include most lawyers and probably most clients, as well as nearly every court in this country. The naysayers constitute a tiny minority, but use similar utilitarian calculations to reach opposite results. Neither group has good empirical data to support its conclusion.
True believers begin their utilitarian justification of the confidentiality obligation by reminding us that the legal system exists as an alternative to ad hoc results and, ultimately, anarchy. For this reason, citizens with disputes should be encouraged to bring them to the legal system for resolution, where compliance with legal norms will promote peaceful, fair, and efficient results.(fn10) A slightly different variation on this theme emphasizes the importance of the legal system in
1324promoting economic efficiency and finds lawyers essential to that function.(fn11)
Confidentiality encourages clients to disclose facts that lawyers need to handle a legal matter by assuring them that disclosure will not result in adverse consequences.(fn12) To do their job, lawyers need complete and accurate facts, both about what has already occurred and about what the client contemplates doing. Receiving these facts is essential to offering legal advice, because legal obligations and remedies depend upon factual circumstances that justify the legal intervention. Lacking accurate facts, the lawyer will either apply the wrong law, give incorrect legal advice, or both, which in turn will reduce public confidence in the legal system and in lawyers.(fn13)
The naysayers use utilitarian reasoning to reach the conclusion that confidentiality actually harms society and the legal system. Jeremy Bentham, for example, argued that the attorney-client privilege should be abolished because it hid the truth from the courts and allowed those with something to hide to get away with unlawful behavior. Bentham reasoned that the object of the criminal law should be to let "no man . . . have it in his power to flatter himself with the hope of safety, in the event of his engaging in the commission of an act which the law, on account of its mischievousness, has thought fit to pro-hibit."(fn14) To those worried about "the safety of the innocent," he argued that "an innocent man could not be endangered by his lawyer's telling all he has to tell."(fn15) It is important to note that Bentham wrote at a time when no privilege against self-incrimination existed, so he reasoned that getting...
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