When Is it Ethical for an Attorney to Betray a Client\'s Confidence?

Attorneys of every ilk are consistently and constantly faced with decisions that test their ethical considerations. Corporate attorneys faced with illegal activities, divorce attorneys faced with familial consequences, defense attorneys defending sometimes guilty clients, medical attorneys pursuing lawsuits on trivial matters, and even attorneys who represent politicians and policy makers are all examples of attorneys who, at some point in their illustrious careers, are faced with ethical situations that will test their mettle. Oftentimes attorneys will necessarily be taken into their client's confidence regarding situations that are questionable. The question this paper will focus on is 'when is it ethical for an attorney to betray a client's confidence?' This question is a significant one in that most attorneys are going to be faced with ongoing situations that will cause them to make ethical decisions based on their beliefs and belief systems.

Importance

The importance of the study is that it can provide fodder for attorneys, or individuals who are considering becoming an attorney, to consider regarding how they will act or react in situations regarding ethics. Current literature used by the study is an attempt to provide ethical situations, as well as solutions or pathways for consideration by those interested individuals.

Methodology

The methodology employed by the paper is primarily based on the current literature and a summary of that literature. The validity of the methodology will be contained in the interpretation of the literature, does it present certain situations that justify action in betraying confidence, or does it not?

Reliability of the literature used is based almost entirely on the ethics of the researchers who completed the studies. There will almost always be some corners that are cut in certain literature, and since this particular study is based entirely on research of the literature, a question will always remain as to the complete reliability of the literature.

It is suggested that, for the most part, since peer reviewed articles and other articles of repute were used in this study, then the reliability of that literature can be said to be of a higher level than if other literature had been used.

Literature Review

Ethics, especially regarding attorneys, is a popular literature subject. With the dearth of attorney specialties and legal matters that require an attorney's attention, it should be a relatively simple matter to address the issue of ethical decisions by attorneys in a variety of situations. Many of the situations covered in this study present data and scenarios that have been addressed throughout the last decade concerning ethical situations faced by attorneys. Much of the literature presents data from a number of different legal viewpoints, or industries including (but certainly not limited to) divorce, business, legal and medical fields.

Each area or specialty presents its own ethical dilemmas and situations. It is especially important to note that the literature presents numerous situations on how an attorney makes an ethical decision, and how their belief systems affect those decisions.

One recent study showed that situations can arise in some areas where most people would never think that such events can take place. The study examined the effects of the McDade amendment to a bill passed by Congress in October, 1998 (Harvard, 2000).

The bill made sweeping changes to the ethics rules that govern attorneys, and also required that federal attorney's actions be governed by the ethics rules of every state in which attorneys engage in their duties. According to the article, the problem that faces the federal attorney is that not only will an ethics violation raise the 'threat of disciplinary sanctions against an attorney, but also the specter of evidence exclusion in a criminal prosecution -- or even the dismissal of criminal charges against a defendant'. The requirements will certainly put a damper on federal attorneys in making ethical decisions.

Most observers would likely be skeptical of any federal courtroom being plagued by any ethical circumstances especially since they are the highest authorities in the land. The idea that the federal justice system was the focus for ethics does make sense however, specifically since it is the highest court in the land. Rules and regulations are standards set for ethical behavior, and ensuring that attorneys know what is, and what is not, expected from them is of a high concern.

This paper will focus on the question of 'is there ever a time when an attorney can justify betraying a client's confidence' and the possible legal and ethical ramifications of doing so. During the literature review an effort will be made to present data on the various ethical situations faced by attorneys, and whether the attorney could or could not ethically justify a betrayal during those situations, whether the literature shows that those situations are confined to the federal, state or local jurisdictions will only matter in so far that the answer to the question is discovered.

Ethical considerations will vary from federal to state to local levels and ethical interpretations will also vary according to the judge or attorney making the interpretation.

Different judges will certainly hold attorneys to standards that will vary from courtroom to courtroom. One study showed that making ethical decisions is not just the bailiwick of the attorney(s) it can also be based on a judge's interpretation of the situation as it is presented. Attorneys are oftentimes held to different standards in various courtrooms, and may necessarily be compelled to walk softly depending on the perception of the judge in a particular case or courtroom. The article determines that judge is master in his or her courtroom, and that perception 'is perhaps most prevalent in the arena of policing attorney behavior'. Different rules for different courtrooms can be the harbinger of trouble and confusion. According to the article, Federal judges may exercise discretion, simply allowing their gut to lead them (Basile, 2009). The problem is that leaves a lot of decision making up to the individual judge, and the resulting inconsistency can be detrimental to the attorney, the judge, the defendant and the entire system.

Comparing the available literature for this study can also lead to not only a comparison of situations at the various levels of American jurisprudence and different courtrooms in America, but other country's courtrooms can be included as well. One recent study concerned how attorneys in Russia cope with ethical situations.

The article describes the perceptions of Russian citizens concerning attorneys in Russian society. What the article portrays is that a majority of Russian citizens hold attorneys in high regard but are concerned with whether those attorneys are ethical.

The survey showed that most Russian citizens "declared that an attorney should be honest, just, principled, morally firm and disinterested" (Voyk, 2009, p. 81). The interesting part of this article is that there was a certain percentage of respondents who believe that the vast majority of attorneys practicing in Russia are corrupt.

The article states that respondents believed that "Russian attorneys today are venal, dishonest, unjust, grasping, and unprincipled, that they take bribes and violate or evade the law, or that they are dependent on the authorities" (Voyk, p. 80). If perception is reality, then the Russian legal system is a mixed review of whether attorneys exercise ethical judgment or if they do not. The ethical situations are most likely similar in other countries and other legal systems as well.

Many of the articles used to answer the research question for this study espoused the belief that "attorney ethics are of critical importance" (Salkin, 2008, p. 562). The article goes on to explain that there have been numerous examples of the conflict of interest by attorneys who are also city officials. The conflict of interest comes into play when these individuals are called upon in their official status to vote on 'land use' decisions. According to the article, oftentimes the attorneys represent entities (including themselves) that may stand to benefit from those votes.

Even the appearance of impropriety is addressed by the article and the fact that the application of ethics codes 'can have chilling effects on attorneys in private practice'. Certainly the appearance of impropriety will have certain effects on attorneys in private practice, as will situations based on the level of understanding of the clientele the attorney is dealing with. More sophisticated clientele will likely be much more in tune to the attorney's actions than would an individual with less sophistication.

The question remains on whether the attorney is going to react differently to situations where he or she may have a higher likelihood of being caught than if the situation was fraught with much less peril.

A recent study of such situations was conducted concerning how attorneys make ethical decisions based on the mental acuity of the client. The study sought to determine whether an attorney is more likely to lower his or her ethical standards or go against his or her ethical standards when faced with a person who is a mentally impaired decision maker. That is the question addressed by this particular piece of literature. The case involves a legal conundrum faced by a Texas hospital concerning a baby born with a rare fatal disease that was so debilitating that the physicians determined continuing care would be useless. The ethical problem concerned the baby's mother, who was incompetent to make the decision to withdraw care.

Can an attorney go against his or her ethical standards when faced with a person who is a mentally impaired decision maker? That is the question addressed by this particular piece of literature. The ethical problem concerned the baby's mother, who was incompetent to make the decision to withdraw care.

This particular woman did not wish to 'pull the plug' on her child, though the doctors felt that preserving the life of the baby would only ensure that the baby lived in a vegetative state for what remained of the child's time here on earth. The article presented the fact that the woman in this case was mental disabled and in reality could not effectively make a life and death situation such as this one. This article is an excellent example of a scenario of ethical concern for the attorney.

The article provides information of a unique situation that could possibly justify an attorney to go against the client's wishes. However, the article does not state what the attorney decided to do. That the article provides no substantial answers to the dilemma is an ongoing concern throughout current literature that also presents situations and circumstances for ethical consideration, yet does not provide answers as to how the attorneys acted during the situation(s).

An additional study is another example of providing ethical fodder with no solution at hand. With the many corporate scandals occurring during the last decade (Enron, Tyco, WorldCom, etc.) the question remains regarding any ethical standards that needs to be considered by corporate attorneys who may have some knowledge of exactly what is taking place as some companies engage in illegal behavior. This article covers a symposium held to address that particular question, and the lawyers attending the symposium presented the view that "even if the lawyers (in these cases) did not perform as we would wish, it does not necessarily follow that we should radically alter time-honored principles of professional responsibility" (Dent, 2007, p. 338).

The symposium also considered to whom the attorney has allegiance; is it the corporation, the shareholders, the entity or the public? Ethically speaking, the attorney is often placed in the middle of a maelstrom of responsibility. Is the ethical attorney the one that keeps the actions of the corporation to him or herself, or is the ethical attorney the one that provides the information to the shareholders and the public? Again the study does not espouse a certain action, only presents the situation.

It is likely that a strong argument can be made from both sides of the issue. The ethical attorney most likely is the one-based entirely on who is doing the judging.

Situations have been presented on a variety of ethical levels, however none are as likely to be as ethically compelling as when a decision will affect how a couple proceed in a divorce situation.

Many divorce attorneys are faced with ethical considerations that are potentially fraught with unforeseen (and in some cases quite disruptive) consequences for children of parents seeking a divorce. One of the ethical considerations prevalent in these circumstances is the use of an alternative dispute resolution (ADR). The use of an ADR in divorce proceedings seems to be lagging the use of ADR's in other legal areas, and this discrepancy may lead to sometimes dire results (Vu, 2009, p. 585). The article purports the fact that "by emphasizing cooperation and negotiation among the divorcing parents, both mediation and collaborative law offer these would-be litigants the opportunity to move forward with their parental duties" (p. 586). According to the article, attorneys should be required to follow uniform ethical requirements in divorce proceedings.

Once again, ethic requirements and standards for attorneys will be set by other individuals. One thing that has become abundantly clear by a research of the data is that there are any number of situations that will require the attorney to stand beside his or her principles and core beliefs, which brings into play a reality check for most attorneys, especially if they have no loyalty to the firm or client they are working with when the situation arises.

This is true for attorneys who have been with a specific firm for a number of years, but it is also very true for those attorneys who are working for a particular firm on a temporary basis. In 2010, R.C. Rodriguez brought to the forefront the situation concerning temporary attorneys and the firms for which they are employed, both the previous firms, and the firms for which they currently are employed.

The situation is especially troubling during times when the economy is bad, thereby causing many law firms to hire attorneys on a temporary basis. According to the article, the problem that is presented is a possible conflict of interest between former and current clientele. Another problem concerns the disclosure or use of information regarding certain cases or clients. The problem is being addressed by various governmental entities that look to present guidelines and methods for information containment, disclosures etc. The article purports that both the hiring firm and the temporary attorney are responsible for instituting safeguards against the use (or misuse) of the information.

An article written my Monroe Freedman for the Michigan Law Review frames the question of legal ethics in three questions.

Only one of the questions is relevant to this paper, the question is "Is it proper to put a witness on the stand when you know he will commit perjury?" (Monroe, P. 1469).

This relates to the thesis of this paper in a number of interesting ways. Other than the fact that committing perjury is, in fact, a crime, the decision to prevent or allow a client from perjuring is similar to the decision to betray a client's confidence.

After all, if the client intends to perjure, he is more than likely trying to save himself from the hangman's noose by lying about his crime. Should the lawyer then release information about his client's guilt when he intends to perjure himself?

Freedman, in an arresting argument, points out that, "[t]here is a clear consensus among prosecutors and defense attorneys that the likelihood of conviction is increased enormously when the defendant does not take the stand. Consequently, the attorney who prevents his client from testifying only because the client has confided his guilt to him is violating that confidence by acting upon the information in a way that will seriously prejudice his client's interests." (P. 1475)

Therefore the decision to allow or disallow perjury from one's client is indeed linked to client confidentiality. Freedman meanders his way through various alternatives to putting the client on the stand. During one arc, he muses on the affects of simply telling the judge that the client intends to perjure himself, while asking to be relieved. The request "is certain to be denied, if only because it would empower the defendant to cause a series of mistrials in the same fashion." (P. 1477). After half a dozen circumstances, he eventually reaches a conclusion. His conclusion is that all other alternatives result in either a retreat from ethical considerations (withdrawing from the case comes to mind) or a transfer of ethical considerations. Both are unacceptable to his mind. The question then becomes, how does one ethically allow a client to perjure himself?

One article provides an interesting framework from which to think of ethical issues in the legal field. "When The Lawyer Knows The Client Is Guilty" creates a paradigm of "soft vs. hard adversarialism" (Asimow, P. 238).

In the context of this article, soft adversarialism is preventing the client from perjuring by informing the judge of the client's intent to do so. Soft adversarialism thus values things "such as the truth-finding function of trials, the obligation of candor toward the tribunal, and the need to protect the reputation of truthful witnesses and the interests of other third parties who may be damaged by the litigation." (P. 236) Soft adversarialists believe that a defense lawyers' goal is not to protect his client from punishment, but to give the client his due-process. This is the highest goal of a defense lawyer, and allowing a client to perjure is a corruption of this process, thus preventing the lawyer from doing his duty.

Hard adversarialism, on the other hand, is the mirror image of soft adversarialism, in that it does not value truth as highly as it does the client's welfare. Indeed, the credo of the hard adversarialist is that the "defense counsel has no ... obligation to ascertain or present the truth. . . . [W]e also insist that he defend his client whether he is innocent or guilty." (P. 235) Thus the goal of a defense lawyer is to defend the client at all costs. If that results in a perjure, then so be it.

Just as in Freedman's article, Asimow points out that withdrawing from a case comes with its own special set of problems. One major problem is that in many states withdrawing from an appointed case is simply impossible. In others, withdrawing requires the judge's permission, often resulting in a denial of the request. So not acting on a client's confidential information by withdrawal is either difficult or impossible. This puts the lawyer in a difficult position. The article attempts to position itself in the middle of the two extremes, allowing the lawyer to choose between soft and hard adversarialism depending on the context of the proceedings.