Lawyers as "tattletales": a Challenge to the Broad Application of the Attorney-client Privilege and Rule 1.6, Confidentiality of Information

• Publication year: 2010

Lawyers as "Tattletales": A Challenge to the Broad Application of the Attorney-Client Privilege and Rule 1.6, Confidentiality of Information

David A. Green

I don't want a lawyer to tell me what I cannot do; I hire him to tell me how to do what I want to do.

J.P. Morgan[1]

When there's a rift in the lute, the business of the lawyer is to widen the rift and gather the loot.

Arthur Garfield Hays[2]

Introduction

Carrie Client worked for ABC Corporation as a bookkeeper. Carrie had been stealing money from ABC Corporation for five years. Victor Victim, a vice president with ABC Corporation, became suspicious that Carrie was stealing from the company. Victor approached Carrie about his suspicion, and she vehemently denied the accusation. Carrie became concerned that Victor would continue to examine the books and discover that she had in fact been stealing from the company. Although Victor was a married man, Carrie began to flirt with him and persuaded him to engage in an extramarital affair with her. Once Victor and Carrie began their affair, he ceased to ask her questions about his suspicion. After two years of having an affair with Victor, Carrie wanted to end the relationship. She told Victor this, and he became very angry, threatening to examine the company books and prove that Carrie was stealing from the company. As Victor turned to walk away from Carrie, she hit him over the head with a brass statue that was in the room. The blow killed Victor instantly. Carrie called her cousin, Arnold Accomplice, and he helped her bury the body.

The following week, detectives interviewed Carrie, as well as other employees, because Victor's wife had filed a missing person's report. The police learned from one of the employees that Carrie and Victor had had an affair. The police also found a note in Victor's file about his suspicion that Carrie was stealing from the company. The detectives questioned Carrie extensively about her relationship with Victor and about Victor's suspicion. Carrie denied that she and Victor had had an affair, and she denied that she knew of Victor's whereabouts. The police informed Carrie that they would question her later.

Carrie ran to the office of Lena Lawyer. Carrie informed Lena that she was stealing from the company and that she had had an affair with Victor. Carrie also told Lena that she had hit Victor in self-defense and that she had disposed of the body with the assistance of her cousin on her grandmother's farm. Although the police never located Victor's body, they possessed sufficient evidence that he was dead.

Carrie was tried for the murder of Victor. In the middle of the trial, Carrie killed herself. Brendan Barrister handled the trial because Carrie had fired Lena over a fee dispute.

An attorney-client relationship began when Carrie sat down to discuss her legal problem with Lena Lawyer. As a result, Lena Lawyer must keep all the information that she had received from Carrie Client confidential, unless some exception to the attorney-client privilege applied.[3]

This hypothetical triggers the application of the attorney-client privilege and the ethical rules of confidentiality. In order to encourage “frank and candid” communications between the lawyer and the client, the attorney-client privilege and the ethical rules of confidentiality mandate that the lawyer keep the client's information in confidence.[4] However, circumstances exist where the lawyer may reveal the client's confidential information. One such circumstance is a fee dispute between the lawyer and the client.[5] Consequently, while Lena Lawyer cannot reveal her client's confidential information to assist in a criminal investigation or to assist the family of Victor Victim in burying him, Lena may be able to reveal this information to resolve a fee dispute with Carrie Client.

This Article examines the application of the attorney-client privilege, the ethical rules of confidentiality, and a lawyer's duty to maintain his client's information in confidence. First, this Article will review the “confidentiality principle” and its historical origins. This Article will use the term “confidentiality principle” to describe the lawyer's obligation to keep the client's information secret under the attorney-client privilege, as well as the lawyer's ethical obligation to keep the client's information secret. Second, this Article will critique the confidentiality principle and discuss the inherent contradiction that precludes a lawyer from revealing confidential information when there is a strong societal need for that information, yet allows the lawyer to reveal the same confidential information to serve the lawyer's self-interest, such as the recovery of legal fees. Third, this Article will discuss how courts apply the confidentiality principle in cases where society has demonstrated a strong need for the information. Finally, this Article will apply the confidentiality principle to the hypothetical between Carrie Client and Lena Lawyer to highlight the hypocrisy of the confidentiality principle and the hypocrisy of the ethical rules that govern lawyers. This Article will conclude that courts and bar associations should revise the confidentiality principle and allow lawyers to reveal confidential information when a strong societal need for the information exists. Specifically, the confidentiality principle should not provide greater protection than the Fifth Amendment right against self-incrimination. Consequently, if a party demonstrates a compelling need for confidential information, a court should be able to require the lawyer to disclose that information, unless the information is protected by the Fifth Amendment.

I. Confidentiality: The Lawyer's Duty to Keep the Client's Information Secret

The information that a lawyer receives from his client is subject to the laws and rules that protect the confidentiality of client information. These laws and rules derive from the rules of professional ethics and the evidentiary attorney-client privilege. While the rule of confidentiality established by the rules of professional ethics is broader than the attorney-client privilege,[6] the rationale behind each is the same.[7]

A lawyer owes an ethical obligation to his client to maintain confidences even if the confidences are not privileged.[8] The ethical obligation to maintain confidences is incorporated in Rule 1.6 of the ABA Model Rules of Professional Conduct (“Model Rules”), which provides:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or

(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.[9]

The ethical obligation to respect client confidences arises from broad policy considerations. Pursuant to Rule 1.6, the duty of confidentiality is directed towards the attorney. Rule 1.6 provides that an attorney should not disclose information that the attorney has learned about a client regardless of where or how the attorney obtained that information.[10] While either the attorney or the client can waive the attorney-client privilege through disclosure to a third party, this disclosure will not waive the duty of confidentiality under Rule 1.6.[11] Pursuant to Rule 1.6, an attorney is still ethically obligated to maintain the confidences.[12]

The attorney-client privilege is an evidentiary privilege applicable primarily in judicial proceedings.[13] Courts construe the privilege narrowly and only apply it in those situations where the party invoking the privilege “consulted an attorney for the purpose of securing a legal opinion or services . . . and in connection with that consultation has communicated information which was intended to be kept confidential.”[14] Moreover, the attorney-client privilege protects only the communications themselves, not the underlying facts.[15]

The attorney-client privilege requires four basic elements: (1) A communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining, or providing legal assistance to the client.[16] The attorney-client privilege is a rule of evidence that precludes another party in litigation from asking either a client or a lawyer what either has exchanged for the purpose of furnishing or obtaining professional legal advice or assistance.[17] The policy basis of the attorney-client privilege rests upon three assumptions.[18] First, the policy assumes that having the assistance of a legal advisor is useful to a person.[19] Second, the policy assumes that “the lawyer's legal advice and assistance must be based upon a firm grasp of the facts” and of the client's objectives.[20] The third and most controversial assumption is that lawyers must “be able to assure clients that their private conversations will always remain confidential.”[21]

In 1986, the American Law Institute (“ALI”), a group of practicing lawyers, judges, and academics, began drafting the Restatement (Third) of the Law Governing Lawyers.[22] The ALI did not radically change attorneys' duties to maintain their clients' confidential information. Rather, the Restatement (Third) of the Law Governing Lawyers provides black letter rules that are consistent with the rule of confidentiality found in the Model Rules and with the...