When Can Your Lawyer Disclose Your Confidential Information?

"When should lawyers be required to reveal information that will hurt their chances in court?” This is the opening statement of an opinion piece written by Thomas Ehrlich and Ernestine Chu.  Well, for me, a trained lawyer, the response was automatic: Never!  Then I remembered that there were a couple of exceptions in our professional ethics code: 

a)    Lawyers must not knowingly allow our clients to lie to the court; and 

b)    Lawyers may reveal confidential information that will “prevent the client from committing a crime or fraud that is reasonably certain result in…” bodily or financial injury to another.

After giving it some thought, I realized that I might just be parroting positions that were drilled into me since the first semester of law school. There, we were taught that our first priority was to be “zealous advocates” for our clients - even if that means acting within the ethical “gray areas”.   Thinking that it was time for me to decide where I stand on this issue based on my own moral compass, I decided to look at Ehrlich’s and Chu’s arguments with an open mind.

Ehrlich and Chu used an example about a robbery to make their point.  However, seeing that this is a business audience, I am going to use the Martha Stewart insider trading case as a hypothetical replacement.  To change the Martha Stewart fact pattern to match Ehrlich’s and Chu’s robbery example we are going to have to make some assumptions:

  • The perjury charge (for which Martha Stewart was actually convicted) is not an issue.
  • There was a witness that had definitive proof that Martha Stewart had engaged in insider trading.
  • That witness could not be easily located.  The witness had recently moved and the post office had no forwarding address.
  • Martha Stewart has informed her lawyer that she has no direct memory of the particular transaction that is the subject of the insider trading charge.

You are Martha Stewart’s attorney.  With a bit of digging, you were able to locate the witness.  As such you were able to assess the evidence the witness has against Ms. Stewart.  And, in your opinion, if this witness was brought to court, your client would definitely be convicted.  So, what would you do if the prosecutor called to tell you that he was going to dismiss the case against Ms. Stewart because he could not locate this witness?  Would you pass on the witness' new contact information or would you keep quiet and allow Ms. Stewart to go free?

In Ehrlich’s and Chu’s robbery scenario, the attorney chose to keep quiet and let his client walk. Ehrlich and Chu challenges us to decide whether or not it was more important for attorneys to follow their professional code that prohibits (with the exceptions listed above) disclosing client’s secrets or prioritize their responsibilities as “officers of the court”.  They argue that, seeing that all attorneys are “part of the justice system, shouldn’t lawyers have a duty to reveal vital information such as the whereabouts of key witnesses, even if they witness will testify for the [other side]”?  Ehrlich and Chu also acknowledged the lawyers’ counter-argument that if every attorney had this “duty to reveal”, then their clients would withhold the whole truth and this would undermine their ability to give them the best legal representation.

My argument is a bit more cynical:

We have an adversarial legal system

 
 
  •  Each side gets legal representation: both defendant and state
    • One side wins and other side loses not only because of innocence or guilt but also because of the quality of the legal representation.
    • We have deliberately built this approach into our legal system.
  • It is not the duty of one side to do the homework of the other.  In the case discussed, it is clear that, with a bit of extra effort, the witness could be found. If the defense could find him/her, so could the prosecution.
  •  As attorneys we are hired to think of our client and our client only – not their opponents.
  • As “officers of the court”, we cannot hinder the courts search for truth by promoting lies. That is why we are barred from suborning perjury.
    • However, our duties do not include helping the state prosecute crimes.  That is the job of the prosecutor.   And if they can’t do their job properly, our client should not have to suffer the consequences.

Let’s further assume that our client, Ms. Stewart, has told us that she intends to continue to engage in insider trading.  The professional conduct exception says we may disclose because it would prevent future crime and fraud that would cause financial injury. Note the use of the word, “may” not must.  It is up to each attorney to decide that ethical line for himself.  I think that is appropriate here.

So after looking at Ehrlich’s and Chu’s argument with an open mind, I still think the lawyers should focus on being zealous advocates.  To emphasize morality or 'duty to society' would undermine our current adversarial system.  Of course, we could decide to go with a totally different, less confrontational legal system  – but that is something to discuss in another post. 

Please let me know your opinions on this! Should the attorney prioritize society or their clients?

Posted on August 21, 2015 and filed under Lawsuit, How To Choose A Lawyer.