Some Silver Linings Have Clouds: Common Law Confidentiality in a Fiduciary Frame, Attorneys, and Cloud Computing

• Publication year: 2022

48 Creighton L. Rev. 793. SOME SILVER LININGS HAVE CLOUDS: COMMON LAW CONFIDENTIALITY IN A FIDUCIARY FRAME, ATTORNEYS, AND CLOUD COMPUTING

SOME SILVER LININGS HAVE CLOUDS: COMMON LAW CONFIDENTIALITY IN A FIDUCIARY FRAME, ATTORNEYS, AND CLOUD COMPUTING

GREGORY J. O'MEARA, S.J.(fn*)

"The thing about sin is not so much what you do; it's who you become."

- Oscar Wilde

I. INTRODUCTION

This paper emerges out of a fundamental, but not easily articulated, dissatisfaction with the 2012 American Bar Association Model Rules Amendments designed to address changes in technology. Although the amendments regarding technology appear to be relatively client protecting,(fn1) I registered an innate dissatisfaction with them when they were drafted as part of the Ethics 2000 revision of the Rules.(fn2) To tease out where I think these rules go off the tracks, I employ a methodology set out by the late French historian and social theorist Michel Foucault and ask: what are the "conditions of possibility" that make these rules practicable?(fn3) I will then apply these observations to a relatively new technology, Cloud Computing, to articulate the precise objections I raise to how the amended Rules work in practice.(fn4) Ultimately, this Article maintains that the amendments fail to protect client confidentiality adequately and insists that the profession revisit the robust duty to protect client confidences understood in the common law framework of fiduciary duties.

Initially, at least three positions converge as one considers Cloud Computing in light of the amended Model Rules addressing technology. These points should trouble ethicists and practicing lawyers alike:

1) a willingness to submit a lawyer's common law duty to maintain the confidences of her client to a cost-benefit analysis,

2) a default method of reasoning in legal ethics that refers solely and only to the bare text of the Model Rules without considering the common law reasoning which gave rise to them, and

3) the attractiveness of Cloud Computing, which is cheap, flexible, and convenient but which lacks the security safeguards our clients need in many instances.

This Article will address each of these concerns and ultimately conclude that although there are times that the proposed amendments to the Model Rules will serve the legitimate needs of sophisticated clients, there are significant ethical challenges to implementing them on a broad scale.

The attorney client relationship is a human interaction laden with complications and steeped in delicate negotiations that can go wrong easily. I stress that fact when I begin my professional responsibilities course; to underscore the inherent difficulty of any prolonged attorney client interaction, I ask my students to read a novel, Ernest J. Gaines' A Lesson Before Dying.(fn5) Within the layered matrix of the story, the young professional, a teacher named Grant Wiggins, is commissioned to help a young man on death row see himself as a human being.(fn6) As emerges in class discussion, our job as attorneys is likewise to convince the jury, the court, our opponents, and sometimes our clients themselves, that our clients are human beings. Only by entering into "the aspirations and sufferings of humanity" as made manifest in the situated lives of our clients,(fn7) can we learn their stories and speak on their behalf; it is through apprehending the "knotty texture of the social fabric" that we become effective advocates for our clients.(fn8)

II. CONFIDENTIALITY IN THE ATTORNEY CLIENT RELATIONSHIP

The primacy of the attorney client relationship is rooted in recognizing a vulnerability rarely thematized in academic literature. When I started as an assistant prosecutor in the mid-eighties, the district attorney impressed upon me, as he did with all new prosecutors, that whenever any person comes into your office, be they a victim of crime, a witness to some disturbance, or even the defendant, it is one of the most important moments in their lives. By virtue of your office, they will tell you matters they have never told another living soul, and the consequences of charging someone with a crime or declining prosecution will reverberate through these lives and the lives of their families for generations. Some threads of their discussion with you may one day be revealed in open court; some facts will be committed to the government's case file, discoverable only through a FOIA request,(fn9) and some events, for a whole range of reasons, may never be recorded or repeated again.

Whenever someone talks with an attorney in a professional setting, something serious is bothering her, and she almost always wants to keep matters hidden from someone else.(fn10) The situation could be as benign as crafting a negotiation strategy to purchase a parcel of commercial real estate, as troubling as realizing that one's marriage is failing because of one's own sexual addiction, or as terrifying as determining if another got hurt in a car crash where your client fled the scene because she was drinking. Clients do not pay lawyers to explain how great everything is in their world. Rather, clients pay attorneys to help them out when matters are difficult and may look insurmountable. Often clients have tried to solve issues on their own; often enough, they have made matters worse.

This professional space wherein attorneys listen to vulnerable clients in confidence is rarely recognized as a praiseworthy locus; rather, legal ethicists have lamented actions by attorneys who maintain the confidentiality of their clients to the detriment of society, ranging from an attorney's failing to inform the court about her client's whereabouts to lawyers' facilitating corporate cover-ups.(fn11) Professor Deborah Rhode points out, "[E]thical rules shield far more compromising information than the laws of evidence concerning the attorney-client privilege."(fn12) The law that creates a place of confidentiality also permits lawyers to remain silent when their failing to speak may contribute to innocent parties' experiencing preventable harm.(fn13) "For considerable periods, lawyers knew much more about the dangers of asbestos, the Dalkon Shield, and tobacco than either regulatory agencies or the users of these products."(fn14) In Lincoln Savings and Loan Ass'n v. Wall,(fn15) where tens of thousands lost their life's savings, the United States District Court for the District of Columbia singled out attorneys for failing to speak up because lawyers involved knew what was happening and said nothing.(fn16) As Professor Rhode observes, the legal profession's unmitigated clinging to confidentiality "often present[s] serious threats to innocent third parties . . . ."(fn17)

Commentary criticizing an attorney's upholding a client's confidences typically fails to recognize that maintaining a client's secrets extracts a psychic and personal toll on the attorneys themselves.(fn18) It is a classically virtue ethics claim to maintain that what we do as human beings affects who we are and become and what our character is.(fn19) It is worth exploring choices made by attorneys and see what the choices and frameworks say about the character of the legal profession.(fn20) These costs are made patent when considering the defense attorneys in the Lake Pleasant Bodies case.(fn21) In the summer of 1973, two lawyers met their client, Robert Garrow, Jr., in his hospital room where he was recuperating from a gunshot wound incurred during his arrest; he was facing a murder charge.(fn22) During ensuing conversations, attorneys Belge and Armani learned that he had murdered other people, and he described where the remains of these other victims were located.(fn23) Belge and Armani later located and photographed the bodies of two uncharged murder victims in places Garrow indicated they would be as they prepared an insanity defense.(fn24) During a later interview, Belge related:

There was never any question in our minds about keeping this a secret. It was assumed from our training in law school. When it was finally revealed that we knew the whereabouts of these two bodies at trial and kept it a secret for almost a year and a half, one would think . . . that we had in our back pockets the Canons of Ethics.(fn25)

Despite believing that they owed their client a duty to maintain his confidences, the attorneys were personally troubled about not revealing what Garrow had told them.(fn26) They sympathized with the pain of the victims' families and struggled with maintaining their silence in this case.(fn27) Mr. Armani observed,

It was a very expensive case, emotionally and economically . . . . For me [not revealing my client's confidences] was quite a soul-searching and very difficult thing to carry and to stick to. When you take that oath of office . . . you are anxious to become a lawyer, but you never realize the consequences of the oath.(fn28)

What these two attorneys knew, but could not articulate, is that there is something fundamental, a consequence of their oath as attorneys, about a lawyer's duty to maintain the confidences of her clients.(fn29) Despite the emotional, familial, and later professional difficulties they experienced,(fn30) the lawyers did not adopt a balancing test or shift into some species of cost-benefit analysis permitting them to set aside the duty. Rather, their training in the common law impressed upon them that attorneys, regardless of personal...