Lawyers and Discretionary Disclosure: Ethics of Confidentiality

Introduction: The Rule of Confidentiality

Lawyers are bound by oath never to reveal information gathered during the entire duration of their representation of a client or their professional relationship with one. The rule of confidentiality has been preserved and cherished for ages. Its purpose is to draw the trust of a client into telling all to his lawyer or attorney — the only way the attorney can negotiate for the maximum benefit of the client. Discretionary disclosure, however, exempts the lawyer from this confidentiality oath under specific circumstances. This paper explores those exemptions and proposes a solution to the presented case.

The rule of confidentiality was first applied and stated in the case of Berd v. Lovelace and has been strongly upheld for three centuries (Stuart, 1997). It is meant to safeguard the confidence a client places in his counsel or attorney, whom the client must trust completely. The U.S. Supreme Court in Upjohn Co. v. United States, 449 U.S. 383 (1981), summarized the purpose of this rule from among many justifications: it is to "encourage the full and frank communication (Id at 389)" between a lawyer and his client. At the same time, it is meant to serve and enhance support for the public interest in observing the law and in the administration of justice.

The conflict between the need to protect client privileges and the requirement to obey the law places the lawyer, the attorney, and their relationship with the client in a difficult position. The rule is fundamentally designed to uncover the facts of a case from a client rather than to hide them. Its purpose is to enable the lawyer to advance the client's cause — something that hiding the facts cannot accomplish. At the risk of severe penalty, such as disbarment, a lawyer may not reveal information gathered during the entire duration of the client-lawyer relationship except under certain conditions. These conditions are: when the client consents to the disclosure; when the attorney reasonably believes that disclosure will prevent the commission of a criminal act by the client that will result in another person's death or bodily harm; and when the disclosure will serve to defend the lawyer in an eventual controversy between them (Stuart, 1997).

Rule 1.6 expressly prohibits a lawyer from revealing information relating to a client's past crime (Hill & Bleiberg, 2013). For example, if a client confides that he murdered someone and hid the body, the lawyer may not reveal this to the victim's family or to the authorities. The rule of confidentiality encompasses two distinct concepts: the confidentiality of information shared and the attorney-client privilege. The attorney-client privilege applies only to confidential or privileged communications. Rule 1.6, however, covers all information gathered in connection with the representation, regardless of the source.

Discretionary Disclosure

The rule of confidentiality sometimes clashes with personal responsibility when the lawyer becomes aware of a client's crimes — past, present, or future. The attorney is torn between the sworn duty to keep all relevant information confidential and the moral duty to act upon knowledge of a crime. He must know how to apply or invoke discretionary disclosure, and how far that disclosure may extend. The validity of any such action is determined by the timing and scope of the attorney-client relationship. Information gathered before the relationship began is not protected by this rule; an attorney cannot make that information privileged simply by entering into an attorney-client relationship with the person involved. Similarly, matters that fall outside and beyond the subject matter of the representation are not confidential (Hill & Bleiberg, 2013).

A lawyer who learns about a client's secret must consider the different effects of three options available to him (Schneider & Levinson, 2005). The first is the effect of revealing the secret. The second is the effect of not revealing it. The third is the effect that non-revelation will have on the attorney and his relationship with the client.

If the lawyer chooses the first option under one of the justifications or exceptions mentioned earlier, the client must face the consequences of his crime, the victim is vindicated, and the attorney avoids disbarment. It has been found that disclosure is beneficial in most such situations. The option not to reveal may be appropriate when the situation does not fall within an exception and the attorney is fully bound by the rule of confidentiality. However, experience shows that concern for the safety of others — particularly of possible or future victims — can become stronger than the rule of confidentiality or an attorney's loyalty to the client. In such cases, the attorney should continue to encourage the client to confess his own crime, emphasizing that doing so is in the client's long-term benefit.

Key Effects of Disclosure Choices

As for the third effect, non-revelation can erode the integrity of the attorney-client relationship itself. That relationship must be built on honesty and integrity. An attorney cannot be effective by colluding with a guilty client. He must communicate to the client that the truth will eventually come out (Schneider & Levinson, 2005).

Philosophers have approached ethical dilemmas according to one of two general frameworks (White, 1993). The first is based on the practical purpose or consequence of the act. The second is judged according to the nature or inherent correctness of the action itself. The first framework argues that if there is no harmful consequence, the action is not wrong. The second argues that some actions are simply wrong and must therefore be avoided. These two approaches can be combined and addressed in three steps (White, 1993).

Conclusion: Responding to the Dilemma

If I were the attorney, I would handle this dilemma in one, two, or all of three ways. In the first, I would make sure that the confessed abduction and murder of the 5-year-old boy by the client is not the subject matter of my representation. If it falls outside the subject matter, then the information is not confidential, and I would inform the parents of the missing and murdered boy about what I learned from the client.