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Law Practice,
Ethics/Professional Responsibility

Apr. 16, 2019

Western philosophy and attorney-client confidentiality

It is not enough to be competent with the “black letter” principles. Lawyers will be competent only if they are aware of the concepts that are at work.

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Law professors are caricatured by law students for expressing opinions that are contradictory. Students regale one another with stories of teachers who cannot express doctrine, because they say, again and again, "on the one hand... on the other hand..."

I conform to the stereotype, but there is a reason. I often am able to argue both sides. I say that sincerely -- there is merit to both sides. That belief is important in an era which insists on extremes.

Here is an example: The duty that attorneys have to maintain client confidences. I understand why this responsibility is at the heart of the professional relationship. I also comprehend why many observers object to what appears to be an excuse to cover up wrongdoing. How can you conceal the location of a dead child when the parents are grieving? Is the outcome any better if a client, aware he cannot rely on your discretion, never tells you where he hid a corpse?

On the one hand, clients expect confidentiality and loyalty. That is reasonable. The concept of representation depends on identification of interests; the attorney and the client are united and the same. Without such trust, it would be difficult for lawyers to perform a useful service. In litigation especially, or any other circumstances that test an allegiance, the purpose of an advocate in an adversarial system is to have an ally who will put your interests above all others. Without exception, we shun those who snitch. Betrayal is not easily forgotten.

On the other hand, society does not abide the yes-man or yes-woman who follows orders despite what is obvious, at that very moment to that very person, to be improper verging on indefensible. That also is sensible. A witness to a crime should not remain a bystander. Attorneys ought to be held to the same standard as any other citizen. The public interest in being protected against con artists, sexual predators and defective products would seem to be greater than the objections of a peer who happens to hold a license to practice law. Otherwise, we are rendered vulnerable to professionals who would maintain their silence, perhaps even destroy documents, and do what they can to advance the interests of the party paying the bills. We are not sympathetic toward the individual who could have intervened and failed to do so. Complicity also is not easily forgiven.

Thus the dichotomy I teach students in the mandatory course on Professional Responsibility. The American Bar Association Model Rules no longer require the strict protection of secrets. They have multiple exceptions -- permissive rather than mandatory -- whereby an attorney can breach a client confidence for what is accepted as a good reason, not only to prevent death and substantial bodily harm but also to mitigate a significant financial loss. The California counterpart does not have the same list, so subject to interpretation a lawyer can easily excuse making a disclosure, even if it is to protect themselves in a dispute.

Because students must resolve these issues as they develop their own identities, I explain two schools of thought in Western philosophy. It is not enough to be competent with the "black letter" principles. They will be competent only if they are aware of the concepts that are at work. The deontological paradigm and the utilitarian paradigm differ. (There are further details that experts could add to my basic overview, but that is for doctoral students rather than law students.)

Deontological framing of ethics, as described by Immanual Kant, is about rights and responsibilities. "Thou shalt not lie" is a deontological statement. It is absolute. It lacks leeway. It is a command. It doesn't matter that the white lie is polite and would be repeated by all except the curmudgeon: As a guest, you do not tell your host how you really are reacting to their decor or their cuisine.

Utilitarian framing of ethics, from John Stuart Mill and Jeremy Bentham, is about the calculation of benefits and costs. Achieve the greater good is a utilitarian statement. It is about balancing. It depends on what is valued. You tell the Nazi soldier at the door you are not hiding Jews in the cellar. That is the proverbial slippery slope though from the noble, risky deception to the self-interested, even self-deceiving falsehood.

There are deontological and utilitarian arguments for more robust attorney-client confidentiality and its opposite. The deontological arguments are about what a client can reasonably insist upon from a lawyer who is serving her. An attorney has an obligation to a client. The utilitarian arguments are about what society can impose upon its members, lawyers or not, who have information that matters to their neighbors. An attorney has an obligation to the court.

No doubt I could be criticized. My resolution of these dilemmas is to provide the students with as much background as I can. I challenge them to think about the problem from all angles, not merely to express their own feelings and subjective intuitions. Yet these are decisions they, and I and each of us, will be compelled to make on our own. So I suggest to them that they look at the precedent and the examples that are abundant around us, of how to lead our lives, and to do the best they can. If you ask me, for the most vexing questions that we ask ourselves, there truly is no correct answer. That is why we continue these conversations.


Ben Armistead

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