Confidentiality and Law: Expectations of Trust in Legal Ethics
There is a significant and critical difference between what one considers professional ethics and one's personal morality. Professional ethical rules may have developed under the wider umbrella of ethical principles, but they do not necessarily reflect what people would consider to be moral behavior. In fact, in some instances, acting in a manner that is considered professionally ethical may require people to engage in behavior that they consider to be immoral based on their own personal religious standards. This can be particularly true in the legal field, where ethical obligations to clients may come in direct conflict with a person's own religiously-inspired moral obligations. However, it is important to realize that ethical rules have developed alongside religious and moral rules, so that, while legal ethics may not mirror religious morals, they will reflect the socio-cultural background in which they developed. In the Western world, this socio-cultural background is based in the Judeo-Christian tradition, while it draws from Muslim, Hindu, and Buddhist traditions in other parts of the world. Because of the impact of imperialism, many of those religious and legal traditions have been influenced both by Western legal traditions and by Christianity.
In the United States, one of the most basic foundations of the lawyer-client relationship is the confidentiality of the lawyer-client relationship. This expectation of confidentiality exists in much of the Western world, though it has different limitations in much of Europe. The theory behind confidentiality is simple; it is believed that a client cannot seek adequate representation from a lawyer without being able to share all available and relevant information with that client. In order to encourage such sharing, the idea of confidentiality has developed. Broadly speaking, confidentiality means that a lawyer cannot reveal what a client has told the lawyer in confidence within the context of the lawyer-client relationship. There are exceptions to this rule of confidentiality, but confidentiality sets the general tone for expectations on the part of the attorney and the part of the client. Confidentiality plays a role in law throughout the world, even if its roots can be traced to imperialism and not necessarily derived from the native religious traditions of the country. For example, a study of law in India demonstrates that attorney-client privilege developed in India at the same time as English colonization of the country and was not a natural extension of Hindu moral principles.
Furthermore, there are times when confidentiality seems immoral, as if it is protecting a person who has committed harm at the expense of a victim. Is it possible to reconcile this continuing victimization with religious principles, which urge people to love one another and to avoid engaging in harms towards each other? For many outside of the legal profession, it may appear that legal ethics do not permit any form of individual judgment because they are broadly prescriptive rules. However, the reality is that each individual lawyer "might bring numerous moral, philosophical, and religious perspectives to his work" (Griffin, 1998). These perspectives necessarily color the individual interpretation of not only what his permitted under the rules, but what is morally required.
It is critical to realize that these underlying moral and ethical principles go beyond the big exceptions to confidentiality contained in the American Bar Association (ABA) model rules, which have generally been adopted by state bar associations. The model rules already contain sufficient exceptions permitting attorneys to waive confidentiality is failing to do so would make the attorney a party to a crime. For example, under ABA model rule 1.6, lawyers are permitted to reveal information if: doing so prevents a death or serious bodily injury; prevent a serious financial harm that would be the result of a client's criminal activity; to prevent, mitigate or rectify a substantial injury to someone's property or financial interests where the lawyer's services were used; to secure legal advice about confidentiality; to establish a defense on behalf of the attorney in a dispute between the attorney and the client; to comply with a court order; and to resolve conflicts of interest (ABA, 2014). Therefore, nothing in the rules compels lawyers to be party to a crime or wrongdoing once they have agreed to represent a client, nor are lawyers required to remain silent when a client has shared plans to continue to harm another individual in a criminal manner. However, these exceptions do little to speak to the nuanced difficulties that can arise in the arena of legal ethics.
Examining the rules, one of the things that becomes clear is that, though attorneys have reasons that they can violate client confidentiality, they are not instructed to violate confidentiality. State laws may change those responsibilities. For example, an attorney whose client has stated an intention to kill someone may have a legal obligation to report a credible threat of death to the police, which goes beyond an ethical obligation as an attorney. However, the ethical obligation as an attorney only permits the attorney to reveal such threats; it does not obligate the attorney to reveal them. From a Christian perspective, considering the sanctity of human life, one might assume that the religious obligation would be to absolutely prevent such harms and to report client behavior that is threatening, at least up to the extent that such behavior is permitted by the model rules. However, even that perspective fails to consider the nuances of different religious backgrounds. Assuming the scenario is not one of competing organized crime figures, but of a beleaguered father who is aware of a step-father sexually abusing his children and has been unable to obtain protection for his children through the court system. If he shares his intent to kill the stepfather with an attorney, and the attorney believes it to be a credible threat, but knows that sharing the threat will result in the stepfather continuing to have access to children he is abusing, is sharing that threat the moral decision to make? The answer to that question is not one to be found in legal ethical guidelines, though they can provide a starting point for the answer, but must be the result of an attorney examining his or her own personal moral code, which is derived from religion.
In fact, the answer to such a scenario cannot even be assumed by knowing a person's religious background. For Christians, one of the Ten Commandments prohibits killing. However, the Ten Commandments are far from the only moral guidance provided in the Bible. The Bible explicitly permits killings in certain contexts, such as war, self-defense, and as a punishment for certain crimes. The prohibition against murder, therefore, can be characterized as a prohibition against unprovoked assaults. Whether or not a provoked assault rises to the level of a prohibited killing is a nuanced issue that finds much disagreement among the Christian community. Some Christians believe that the prohibition against killing is an absolute one and would not take a human life, even in self-defense. At the other end of the spectrum are those who practice Christianity and believe in aggressive, preventative self-defense. Further complicating the matter is the fact that the attorney is not the actor; does a religious prohibition against killing, which the attorney would think applied personally in scenario being discussed, carry with it an obligation to report those who would violate that prohibition without involving the attorney?
Furthermore, what if the father states an intention to castrate, but not kill, the stepfather in that scenario? There is no question that castration would fall under the umbrella of serious bodily harm that would permit the attorney to report the client's plan. However, it seems clear that the religious ethical obligation is far less significant in that scenario. For Christians and Jews, there is no commandment prohibiting people from committing even a grievous assault and the Abrahamic religious traditions all have a significant amount of violence. Moreover, there is much in Christian theology that suggests that a man has a moral responsibility to protect his children. In fact, if one were to look at the Christian duty to help one another, it might even be possible to view such a plan as a means of forcefully helping the stepfather. After all, there is a significant amount of research about pedophiles that might actually view castration as a merciful option that could help relieve an offended of urges to harm that, one presumes, are unwanted. However, for a Buddhist, whose religion is against all violence, the threat of an assault may be seen as being as immoral as failing to prohibit a killing. Furthermore, even if there is no proscription against castration; would this type of threat give rise to an obligation, independent of any legal obligations to report, to reveal the client's confidential plans? The ethical guidelines are sufficiently vague so as to require independent moral reflection, which necessarily involves personal religious principles.
However, an attorney who practices Islam would not face the same moral dilemma. Lawyers…