Lawyers and Discretionary Disclosure: Ethics of Confidentiality
This paper examines the ethical tension lawyers face between the duty of client confidentiality and the moral obligation to disclose information about serious crimes. Drawing on Rule 1.6, landmark cases such as Upjohn Co. v. United States, and philosophical frameworks for resolving ethical dilemmas, the paper analyzes when discretionary disclosure is permissible, what consequences each option carries, and how an attorney should weigh competing duties. The paper concludes with a practical response to a case scenario involving a client who has confessed to the abduction and murder of a child, outlining the steps an attorney might take to protect both legal and moral obligations.
- Introduction: The Rule of Confidentiality: Legal history and purpose of attorney-client confidentiality
- Discretionary Disclosure: Rule 1.6 exceptions and scope of confidentiality
- Key Effects of Disclosure Choices: Consequences of revealing or withholding client secrets
- Resolving an Ethical Dilemma: Philosophical framework for ethical decision-making
- Conclusion: Responding to the Dilemma: Attorney's three-part action plan for the case
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What makes this paper effective
- The paper grounds its ethical argument in concrete legal authority, citing Rule 1.6 and Upjohn Co. v. United States, which gives the analysis credibility beyond mere opinion.
- It applies a structured three-step philosophical framework to the dilemma, balancing consequentialist and deontological reasoning rather than relying on one approach alone.
- The conclusion moves from abstract principle to a specific, personal action plan, demonstrating applied ethical reasoning with practical, real-world steps.
Key academic technique demonstrated
The paper demonstrates applied ethical analysis: it introduces a legal rule, identifies the tension it creates with moral duty, evaluates competing options and their consequences, and arrives at a reasoned course of action. This mirrors the structure expected in professional ethics writing — define the rule, identify the conflict, weigh the options, resolve.
Structure breakdown
The paper opens with the historical and legal basis for confidentiality, then narrows to the specific exemptions under Rule 1.6. A middle section weighs the practical effects of each disclosure option. A philosophical section provides a two-approach framework for resolving ethical dilemmas. The conclusion applies all prior analysis to a specific case scenario, offering three concrete courses of action the attorney could take. The overall flow moves from rule → conflict → analysis → resolution.
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).
Discretionary Disclosure
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.
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).
Key Effects of Disclosure Choices
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.
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).
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.
In the second approach, if I learn that the confessed information lies within the subject matter of my representation, I would continue to persuade the client to confess his crime to the authorities. I would emphasize the benefit of a guilty plea and assure him that I would work vigorously to seek leniency from the judge and a significantly reduced sentence.
Third, I would remind him that his crime will eventually come to light no matter how long or carefully it is hidden. When it is discovered — whether in the near future or years from now — he may no longer be able to obtain the lenient considerations that are available to him now if he agrees to confess voluntarily. I would also remind him of the psychological relief that comes from confession: release from guilt and the constant stress of concealment. Research consistently links chronic stress and guilt to a growing range of serious health conditions, including heart disease, cancer, asthma, and hypertension. I would persist in conveying to him that life can be better without the burden of guilt and the ever-present fear of discovery.
References
Hill, J., & Bleiberg, R. (2013). Managing ethical issues in your day-to-day practice. Hill and Bleiberg Injury Lawyers.
Schneider, B., & Levinson, J. P. (2005). Ethical dilemmas related to disclosure issues: Sex addiction therapists in the trenches. Retrieved from
Stuart, G. (1997). The ethical duty of confidentiality. Ethics Law. Retrieved from
White, T. L. (1993). Resolving an ethical dilemma. Ethics and Business. Retrieved from
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