Maurice A. Deane School of Law at Hofstra University Maurice A. Deane School of Law at Hofstra University

Scholarly Commons at Hofstra Law Scholarly Commons at Hofstra Law

Hofstra Law Faculty Scholarship

1982

Lawyer-Client Confidences: The Model Rules' Radical Assault on Lawyer-Client Confidences: The Model Rules' Radical Assault on

Tradition Tradition

Monroe H. Freedman Maurice A. Deane School of Law at Hofstra University

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Recommended Citation Recommended Citation Monroe H. Freedman, Lawyer-Client Confidences: The Model Rules' Radical Assault on Tradition, 68 A.B.A.J. 428 (1982) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/13

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Clientmnces,

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The traditional relationship between lawyer and clientshould be retained in ethical rules.

By Monroe H. Freedman

THE provisions of the proposed ModelRules of Professional Conduct relatingto confidentiality will seriously impair,if not destroy, the traditional relation-ship between lawyer and client. Let meexplain why that is so by reviewing thestatus of confidentiality in the currentAmerican Bar Association ethicalstandards and in Supreme Court deci-sions, and by showing how the modelrules would radically change our tradi-tional standards and values.

Whether serving as counselor or asadvocate, the lawyer must establish arelationship of trust and confidencewith the client. Only through that rela-tionship can the lawyer learn all therelevant facts, determine which are im-portant and which are helpful or harm-ful, and give the client professionaljudgment and representation. If theclient were to withhold informationthat might be relevant, the lawyer couldnot effectively serve the client's needs.Accordingly, the lawyer must be able toassure the client that confidences willbe inviolate in all but the most unusualand extreme circumstances.

Although that statement of thelawyer-client relationship emphasizesthe interests of the individual client, itis in fact the public interest that isthereby served in a free society. Even anintelligent and informed lay person isunable to cope with the complexities ofthe law without professional adviceand assistance. The traditional lawyer-client relationship enhances individualautonomy by increasing the client'sknowledge of the lawful choices avail-able. In addition, the ideal of equalitybefore the law is served by giving pro-fessional assistance to each person whoneeds it.

The public interest also is furtheredby trust between lawyer and client be-cause it puts the lawyer in a position togive advice that is socially desirable. Asevery lawyer knows, the client whomay be tempted to commit a crime orfraud or other wrongful act often can bedissuaded by professional counsel, butonly if the lawyer knows the facts onwhich to base that counsel.

No rule of law, no matter how fun-

damental, has ever been unwavering orfree of ambiguities, and the protectionof lawyer-client confidences is no ex-ception. The professional ideal of con-fidentiality is clear, however, and thetrend towards increasingly strict pro-tection is manifest in professionalstandards and opinions.

At least as long ago as 1833 the Eng-lish common law recognized that con-fidentiality is essential to enable clientsto obtain professional advice. In 1914Mechem in his work on agency ex-pressed the same view, adding that di-vulgence of a confidence by a lawyernot only wouldbe "a gross violation ofa sacred trust" but would "utterly de-stroy and prevent the usefulness andbenefits to be derived from professionalassistance."

Early canonsof ethics

were ambiguous

The A.B.A.'s Canons of ProfessionalEthics, as adopted in 1908, expresslyprotected clients' "secrets or confi-dences" in Canon 6. In 1928 Canon 37was added to explain the lawyer's"duty to preserve his clients confi-dences," and that provision was madeeven more emphatic in 1937.

The canons, however, were ambigu-ous, if not self-contradictory. In addi-tion to express protection of confi-dences and secrets, they included a fu-ture crime exception (Canon 37), pro-scribed "any manner of fraud orchicane" (Canon 15), required candorto the court (Canon 22), and requiredthe attorney to reveal fraud to the otherparty (Canon 41) and perjury to theprosecuting authorities (Canon 29).What, then, was the lawyer's obligationif a client was a fugitive from justice,jumped bail, violated parole, or com-mitted perjury?

The formal opinions of the A.B.ACommittee on Professional Ethics thatattempted to resolve those issues (23,155, 156, and 268) were in conflict until1953. Then, in Opinion 287, the com-mittee resolved the conflicts in favor ofconfidentiality, holding specifically

Illustration by Dick Mlodock

that an attorney who learns that a clienthas committed perjury in securing a di-vorce should advise the client to informthe court but should not reveal the truthif the client fails to do so.

Referring expressly to "the duty ofcandor and fairness to the court" andthe canons requiring disclosure offraud and perjury, Opinion 287 foundthose canons to be "[insufficient] tooverride the purpose, policy, and ex-press obligation [of confidentiality]under Canon 37." The opinion con-cluded: "We yield to none in our insis-tence on the lawyer's loyalty to thecourt of which he is an officer. Suchloyalty does not, however, consistmerely of respect for the judicial officeand candor and frankness to the judge.It involves the steadfast maintenance ofthe principles which the courts them-selves have evolved for the effectiveadministration of justice, one of themost firmly established of which is thepreservation undisclosed of the confi-dences communicated by his clients tothe lawyer in his professional capac-ity."

As originally drafted, the Code ofProfessional Responsibility appeared torevive the ambiguities of the canons.The code recognizes in Ethical Consid-eration 4-1 that confidentiality is essen-tial to the traditional lawyer-client rela-tionship, but the 1969 version of Disci-plinary Rule 7-102(B)(1) appears also torequire disclosure of clients' fraud.That rule contains two clauses relatingto fraud by a client on a person or tri-bunal. The first clause (presenting noproblem) requires that the lawyer"promptly call upon his client to rectifythe [fraud]." However, the secondclause reads: "and if the client refusesor is unable to do so, [the lawyer] shallreveal the fraud to the affected personor tribunal."

The Bar Association of the District ofColumbia immediately and over-whelmingly deleted the second clause,which appears to require disclosure ofclient fraud. The A.B.A. House of Dele-gates took similar action in 1974, byadding a third clause to D.R. 7-102(B)(1). As a result of that amendment,the attorney is now called on to reveal

April, 1982 * Volume 68 429

the client's fraud "except when the in-formation is protected as a privilegedcommunication." If construed broadly,of course, the third clause, which for-bids disclosure, swallows up the sec-ond clause, which appears to requiredisclosure.

That is just what happened. In Opin-ion 341 (1975) the A.B.A. Committee onEthics and Professional Responsibilityheld that the amendment to D.R.7-102(B)(1) protects not only "confi-dences" but also "secrets" of the client."Secrets," according to D.R. 4-101(A),include "information... the disclosureof which will be embarrassing ... to theclient." In the words of Geoffrey C.Hazard, Jr., reporter for the commissionthat produced the Model Rules of Pro-fessional Conduct, the amendment toD.R. 7-102(B)(1) "eviscerated the dutyto report fraud" (Ethics in the Procticeof Law, page 27).

As explained in Opinion 341, the ef-fect of the amendment of D.R.7-102(B)(1) is to "reinstate the essenceof Opinion 287"-that is, confidential-ity "is so important that it should takeprecedence in all but the most seriouscases." Opinion 341 acknowledges that"the conflicting duties to reveal fraudand to preserve confidences haveexisted side-by-side for some time" butadds that "it is clear that there has longbeen an accommodation in favor of pre-serving confidences." Opinion 341 re-lies on "tradition. .. backed by sub-stantial policy considerations" to pre-serve the lawyer-client relationship oftrust and confidence.

The bar's traditional position onlawyer-client confidences is an integralpart of the Sixth Amendment right tocounsel and of the Fifth Amendmentprivilege against self-incrimination.For example, in Upjohn Company v.United States, 449 U.S. 383 (1981), Jus-tice Rehnquist, writing for a unanimousSupreme Court, quoted with approvalthe language of E.C. 4-1: "A lawyershould be fully informed of all the factsof the matter he is handling in order forhis client to obtain the full advantage ofour legal system. It is for the lawyer inthe exercise of his independent profes-sional judgment to separate the rele-vant and the important from the irrele-vant and unimportant. The observationof the ethical obligation of a lawyer tohold inviolate the confidences and se-crets of his client not only facilitates thefull development of facts essential toproper representation of the client butalso encourages laymen to seek earlylegal assistance."

Note that the quoted language relatesthe ethical obligation of confidentialityto what is "essential to proper represen-tation." Dissenting in United States v.Henry, 447 U.S. 264 (1980), JusticeRehnquist explicitly said that "theSixth Amendment, of course, protectsthe confidentiality of communicationsbetween the accused and his attorney."

Chief Justice Burger observed inTrammel v. United States, 445 U.S. 40(1980), that the lawyer-client privilegerests on the need for the lawyer -not

only as advocate, but also as counselor-to know everything that relates to theclient's reasons for seeking representa-tion, and that the privilege is thereforerooted in "the imperative need" forconfidence and trust between lawyerand client. Without that confidence and

* trust and the full communication thatflows from it, the lawyer cannot pro-vide effective assistance of counsel.

Model rules failto "clearly differentiate

right from wrong"

With regard to the Fifth Amendment,the Supreme Court held in Fisher v.United States, 425 U.S. 391 (1976), thatthe attorney-client privilege applies todocuments in the hands of an attorneythat would have been privileged in thehands of the client. As stated inWhitebread's treatise on criminal pro-cedure, the Supreme Court has "ex-tended Fifth Amendment protection tothe attorney-client privilege for the ex-press purpose of encouraging the unin-hibited exchange of information be-tween citizens and their attorneys."

The Model Rules of ProfessionalConduct nevertheless would requirethe lawyer to divulge a client's confi-dences to a tribunal (Rule 3.3) and tothird parties (Rule 4.1) in order to cor-rect deliberate falsehoods, uninten-tional falsehoods, and deliberately mis-leading omissions by the client. In ad-dition, divulgence is permitted in a va-riety of circumstances under Rule 1.6.Those provisions are inconsistent withthe traditional lawyer-client relation-ship and would reverse the trend ofauthority expressed in the old Canonsof Professional Ethics, in A.B.A. Opin-ions 287 and 341, and in the 1974amendment to D.R. 7-102(B)(1) of theModel Code of Professional Responsi-bility.

The obligations of disclosure wouldnot simply prevent the lawyer fromgoing forward with a client who is

committing a fraud. Withdrawal fromthe representation is not sufficient tosatisfy the express requirements ofRules 3.3(a)(2) and 4.1(b) that the law-yer "shall not knowingly fail to dis-close the client's confidences to the tri-bunal and to third persons."

That conclusion is clouded by someinconsistent drafting in Rule 3.3(a).Subsection (2) of that rule unambigu-ously requires "disclosure of a factnecessary to prevent a fraud on a tri-bunal," while Subsection (4) of thesame rule says only that the lawyershall take "reasonable remedial meas-ures." The comment explains "reme-dial measures" to mean that "ordinar-ily" the lawyer should make promptdisclosure to the court. Thus, Rule

.3(a)(2) stipulates disclosure as thesole required course, while Subsection(4) of the same rule makes disclosurethe ordinary course but not the exclu-sive one. Neither the rule nor its com-ment explains what other coursesmight be embraced by "reasonable re-medial measures." In view of the man-datory language of Rule 3.3(a)(2), there-fore, the lawyer who failed to violate aclient's confidences would act at his orher peril.

The inconsistency between Subsec-tions (2) and (4) of Rule 3.3(a) is onlyone illustration of the failure of themodel rules to "clearly differentiateright from wrong" and to tell lawyers"exactly what they ought to do," aspromised in 1979 by Robert J. Kutak,chairman of the Commission on Evalu-ation of Professional Standards. A moreserious failure of that sort is the "ca-veat" to Rule 3.3, which cautions thatconstitutional law defining the right toassistance of counsel in criminal cases"may" supersede the obligations im-posed by the rule. Thereby, the modelrules leave the lawyer whipsawed be-tween the threat of disciplinary actionfor failing to disclose confidences and acharge of ineffective assistance andmalpractice for doing so.

Nor are the notes to Rule 3.3 eitheradequate or helpful. They suggest that"the general constitutional theory ap-plied by the Supreme Court" favors di-vulgence of clients' confidences by theattorney. As shown above, however,that conclusion is wrong. In addition,the notes fail to cite the most importantcases bearing on the Fifth Amendmentprivilege against self-incrimination andthe Sixth Amendment right to counsel.The two Supreme Court cases that arecited are characterized in a misleadingway and do not support a rule requiring

430 American Bar Association Journal

divulgence of confidences by the crim-inal defense lawyer.

The commission also fails to live upto its own standards of candor in otherimportant respects. Writing in thisJournal last September (page 1116), forexample, Mr. Kutak has stated that D.R.7-102(B) "requires disclosure of everyunrectified fraud committed by a clientin the course of representation." As ex-plained in Opinion 341, however, thatapparent requirement of disclosure wasthe result of an oversight in draftingthat was corrected by the A.B.A'sHouse of Delegates eight years ago. Mr.Kutak then says that "some jurisdic-tions" (omitting any reference to theA.B.A. itself) have amended the Code ofProfessional Responsibility to protect"privileged" information. "But," headds, "'privilege' is undefined and theamendment has served largely to fosterconfusion." Mr. Kutak fails to informthe reader that Opinion 341 has longsince resolved any confusion by defin-ing "privileged" extremely broadly toinclude "secrets," thereby protectingeven information that would be embar-rassing to the client.

The comments and notes to themodel rules are similarly misleading.Despite extensive citations of onlymarginally useful authorities, they con-tain no reference to Opinion 287 andonly one to Opinion 341. That one ref-erence is erroneous. It reads: "A.B.A.Formal Opinion 341 (1975) construedthe term 'privilege' to include 'confi-

dences' as defined in D.R. 4-101(A)."The essential point of Opinion 341,however, is that the 1974 amendmentwas not limited to "confidences" butwent far beyond to protect "secrets" aswell. Elsewhere the model rules simplyomit reference to Opinion 341, evenwhen it is highly material to the com-ment.

The most effective way to inhibit ordestroy a relationship of trust and con-fidence would be to require the lawyerto admonish a client that any disclo-sures made to the lawyer might have tobe disclosed to others despite injury tothe client. That has been characterizedby Professor Hazard as a "Mirandawarning." He has noted that the legaleffect of the Miranda warning may havefar-reaching consequences, for to give itis to treat the client as a nonclient.

But Rule 1.2(e) of the model rules re-quires a lawyer-client Miranda warn-ing. The rule is unclear and unsatisfac-tory as to when the warning should begiven, but, laying that aside, the pro-vision is wholly inconsistent with thetraditional lawyer-client relationship oftrust and confidence. At the same time,we must recognize that deletion of thatprovision would not solve the problem.In view of the broad disclosure pro-visions of the model rules, elementalfairness requires that the client be puton notice that the lawyer would be re-quired or permitted to betray confi-dences. Indeed, there is, again, a con-stitutional aspect to the issue.

House to Consider Model Rules of Professional Conduct

* In January the A.B.A. House of Dele-gates voted to accept the "restatement"format for the Model Rules of Profes-sional Conduct proposed by the Com-mission on the Evaluation of ProfessionalStandards. The commission now plans tosubmit its final draft for consideration bythe House of Delegates in August at the1982 annual meeting in San Francisco.The final draft was published as a specialpullout section of the October, 1981,issue of the American Bar AssociationJournal.

The House Special Committee onHearings has requested that all interestedindividuals and groups submit to it inwriting any specific amendments or op-posing positions that are proposed forpresentation to the House in August. TheRules of Procedure of the House of Dele-gates require that "all motions to amendrecommendations must be in writing,unless the amendment contains six orless words." All documents should bereceived at the American Bar Center in

Chicago no later than June 9, and theyshould be addressed to Judith W. Smith,Office of Policy Administration, Ameri-can Bar Association, 1155 East 60thStreet, Chicago, Illinois 60637 (telephone3121947-3932). As soon as possible afterJune 9, a compilation of all amendmentsand position statements submitted willbe forwarded to all who submitted doc-uments and to the Commission on Evalu-ation of Professional Standards.

The House Committee on Hearings hasdecided tentatively to hold hearings firstin Chicago about June 25 and again inSan Francisco on Friday, August 6, togain information that may assist it andthe House Committee on Rules andCalendar in an orderly presentation tothe House by identifying controversialareas. In some instances different groupsmay propose amendments that seek toachieve the same goal, and these groupsmay be able to reach agreement on a co-ordinated presentation in advance of thetwo scheduled hearings.

For example, in United States v.Henry a government informer wasplaced in a cell with Henry and estab-lished a "relationship of trust and con-fidence" with him. As a result, Henryrevealed incriminating information tothe informer. In an opinion by ChiefJustice Burger, the Supreme Court heldthat because Henry's conviction wasbased in part on the admissions elicitedthrough the false relationship of trustand confidence, it violated Henry'sSixth Amendment right to counsel.

Also significant is the recent decisioninEstelle v. Smith, 451 U.S 454 (1981).There a psychiatrist examined the de-fendant regarding his competency tostand trial. The defendant was not ad-vised of his privilege against self-incrimination, nor was his lawyer in-formed of the examination. After con-viction and in a separate penalty phaseof the trial, the psychiatrist testifiedthat the defendant was dangerous.Chief Justice Burger again wrote theopinion for the Court. He noted thatduring the psychiatric evaluation, thedefendant "assuredly... was 'not inthe presence of [a person] acting solelyin his interest.'" Rather, the psychia-trist's apparent role of neutralitychanged, and he became at the sentenc-ing trial "an agent of the state recount-ing unwarned statements" made in apostarrest custodial setting. Ac-cordingly, the defendant's Fifth andSixth Amendment rights had been vio-lated, and the sentence was vacated.

Clearly, a lawyer cannot do what thecellmate in Henry and the psychiatristin Estelle could not do-that is, estab-lish an apparent relationship of trustand confidence, elicit harmful informa-tion, and then disclose the informationcontrary to the client's interests and de-sires.

Having required disclosure of clientconfidences, the model rules, of neces-sity, require a Miranda warning. Butthat admonition comes at the cost oftreating the client as a "nonclient." Inits 1980 discussion draft, the Kutakcommission acknowledged that such awarning "may lead the client to with-hold or falsify relevant facts, therebymaking the lawyer's representation... less effective." That candid

acknowledgment has been omittedfrom the present draft, but the omissiononly conceals the rule's effect withoutchanging it.

The current fad for requiring lawyersto divulge confidences has receivedsubstantial impetus from consumer ad-vocates. Concerned with scandals in-

April, 1982 * Volume 68 431

volving unsafe automobiles, hazardouswastes, dangerous drugs, and corporatebribery, some of them have urged thatan effective way to police abuses wouldbe to require corporate lawyers to be"whistle-blowers." The proponents ofwhistle-blowing generally reject theargument that it would impair the basicrights of individuals. They insist thatthe whistle-blowing requirementshould be imposed only on lawyers forcorporations, as. distinguished fromlawyers representing individuals.

Ironically, the Kutak commission hasturned that notion upside-down. Whilelawyers representing individuals arerequired to make disclosures in manyinstances and permitted to make themin many more, lawyers representingbusiness organizations are absolutelyforbidden under Rule 1.13(b) and (c), invirtually all circumstances, to revealeven ongoing and future crimes. As-sume, for example, a case in which anautomobile manufacturer is being suedfor substantial damages for marketing acar with a gasoline tank that is al-legedly defective in design and has fre-quently exploded, causing numerousdeaths. The company's lawyer learnsthat tests had been performed by thecompany, prior to production of thecar, showing that the gasoline tank wasdangerous. After commencement of thelitigation, however, the company's vicepresident for design destroyed all evi-dence of the tests and then testified thatthere had been fone.

Rules 3.3(a) and 4.1 would requirethe attorney to reveal the truth to thecourt and to the other parties. Not so inthis case, however, because Rules 3.3and 4.1 are governed by Rule 1.13 whena corporate official is involved. Asstated in the comment to Rule 1.13: "Toguide his conduct under Rule ... 3.3 or4.1 .... the lawyer ordinarily shouldmake inquiry within the organizationas indicated in Rule 1.13(b)."

Professor Hazard said in a panel dis-cussion at the meeting of the Associa-tion of American Law Schools last Jan-uary that Rule 1.13 is not intended togovern in situations in which Rules 3.3or 4.1 are involved. That informal oralexplanation, however, is clearly incon-sistent with the text of the rule and withthe official written comment, whichhave not been amended or disavowedby the Kutak commission.

Under Rule 1.13 the attorney in ourexample must first "know" (not just"believe") that the vice president fordesign is acting unlawfully and alsothat his unlawful act is "likely to result

in material injury to the organization."That is not likely in our case, but sup-pose the lawyer somehow knows thatexposure of the obstruction of justiceand perjury is likely, and that a sub-stantial penalty against the companyalso is likely. The lawyer still must notreveal the truth but must proceed as is"reasonably necessary in the best inter-ests of the organization," giving "dueconsideration to the seriousness of theviolation and its consequences, thescope and nature of the lawyer's repre-sentation, the responsibility in the or-ganization and the apparent motivationof the person involved,- [and] thepolicies of the organization." The law-yer also must act so as to "minimizedisruption of the organization and therisk of revealing information relating tothe representation to persons outsidethe organization." Even with all thathedging, the lawyer is not permitted toreveal the truth but is limited to askingthe vice president to reconsider his act,advising a separate legal opinion, andreferring the matter to higher authoritywithin the organization.

Model rules wouldseriously impair the

lawyer-client relationship

Assume now that the matter is re-ferred to the board of directors, whichdecides that the truth is not likely tocome out and directs the lawyer to re-main silent. The lawyer then must de-termine whether two more conditionshave been met: first, that the board has"clearly" committed a violation of alegal obligation to the organization or aviolation of law that reasonably mightbe imputed to the organization; andsecond, the board's action is likely toresult in substantial injury to the com-pany. In that event, the lawyer still maynot reveal the truth unless he is reason-able in believing three more things:first, that divdlgence is "necessary" inthe best interest of the company; sec-ond, that the board has acted to furtherthe personal or financial interests of theboard members; and third, that thosepersonal or financial interests of theboard members are in conflict with theinterests of the company.

Only after meeting all those extraor-dinarily unlikely conditions is the law-yer permitted, but never required, todivulge the truth to the court or theother parties about the vice president'sobstruction of justice and perjury. Amore direct and honest drafting of Rule

1.13 would say simply: "The pro-visions of these rules requiring or per-mitting divulgence of a client's confi-dences shall not apply to a lawyer rep-resenting a business organization."

The model rules' provisions on clientconfidences are radical, poorly drafted,misleading, inconsistent, and uncon-stitutional. They would seriously im-pair, if not destroy, the traditionallawyer-client relationship of trust andconfidence, reversing the clear trend ofA.B.A. ethical rules and formal opin-ions; they would require that a"Miranda warning" be given by thelawyer to the client, in violation of tra-dition, common sense, and constitu-tional law; they would carve out an in-consistent exception for lawyers repre-senting business organizations; andthey are based on seriously flawed andmisleading scholarship, includingmisstatements and omissions of impor-tant authorities.

The disclosure provisions are basedon the fact that lawyers know a gooddeal of relevant truth and on the notionthat the legal system will produce moretruth if lawyers are required to divulgeit. The fatal fallacy of that notion is thatas soon as clients learn that their confi-dences are not safe with their lawyers,the lawyers will no longer have manytruths worth divulging.

In sum, clients would come to under-stand that any truths that might beharmful to them could not be entrustedto their lawyers. The result would bewhat is known as "intentional" or"selective ignorance" on the part of thelawyer. As recently as 1979 that ap-proach was denounced by the A:B.A.House of Delegates as "most egregious"and as constituting a "professional im-propriety" advocated by "unscrupulu-ous lawyers" when it approved theStandards Relating to the ProsecutionFunction and the Defense Function.

The provisions of the Model Rules ofProfessional Conduct relating to clientconfidences-Rules 1.2(e), 1.6, 1.12(b)and (c), 2.3, and 4.1(b)-should be re-jected and the traditional relationshipbetween lawyer and client should bemaintained.

(Monroe H. Freedman is a professorof law at Hofstra University and ofcounsel to Orenstein Snitow Sutak andPollack, P.C. He is the author of Law-yers' Ethics in an Adversary System(1975) and was reporter for the Ameri-can Lawyers' Code of Conduct, a proj-ect of the Roscoe Pound/American TrialLawyers Foundations.)

432 American Bar Association Journal

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