Lawyers Consider Easing Restriction on Client Secrecy

The New York Times
By William Glaberson

For the first time in nearly 20 years, the American Bar Association is considering an expansive update of ethics rules for lawyers, which if approved would give attorneys more freedom to divulge their clients' secrets if such revelations would prevent fraud, injury or death. The proposed rules, which also deal with such thorny topics as whether lawyers should be allowed to have sex with clients and whether lawyers should be obligated to tell the whole truth in court, are to be considered at the association's annual meeting beginning Wednesday in Chicago.

The rules carry tremendous weight because they are blueprints for state laws. Over the years, the guidelines have also provided an important window into the issues confronting the legal profession.

"Every couple of decades, the profession looks at the whole set of ethics rules," said Roy D. Simon Jr., a legal ethics professor at Hofstra University School of Law. "And when it does, you get these broad debates about the fundamental concepts that underlie the way lawyers operate across the country."

It is unclear how far the association will go in changing its guidelines, but the proposals have already begun to roil the legal profession.

The most controversial of the measures would limit the secrets that lawyers must keep on behalf of their clients. Some lawyers say the proposals amount to an attack on a cherished value of the profession, which is that people in trouble should be able to trust their lawyers.

"They would create a situation where, from the moment the client walks into your office, the client is at odds with the lawyer," Judd Burstein, a New York litigator, said of some of the challenges to the confidentiality principle. A bar association rule permits a lawyer to reveal information if it is necessary to prevent a client from committing a crime that is likely to result in "imminent death or substantial bodily harm."

The proposed change would permit more disclosure. Lawyers would be able to report information to prevent "reasonably certain" death or substantial injury. The harm need not be imminent or the result of a crime by the client. Proponents say the proposed rule might have allowed corporate lawyers to sound an alarm about such dangers as tobacco, asbestos or defective tires.

Under a related proposed provision, the bar association would make it clear that a lawyer could disclose financial fraud by a client if that client was using the lawyer's services to commit the fraud. Many states already have that rule. Lawyers who say the proposals violate the basic understanding between lawyers and their clients are organizing to try to defeat the measures in Chicago.

Sean M. SeLegue, a San Francisco lawyer, said the bar proposal was undermining lawyers' loyalty to their clients. "It is crucial to people to know that when they entrust information to a lawyer that the legal profession will honor the commitment it makes to keep that information confidential," Mr. SeLegue said.

Proponents counter that the measures simply declare that lawyers are ethical members of society who cannot stand by as people are put at risk of death, injury or fraud. The measures might also give lawyers added power to compel their clients to behave lawfully.

"It gives the lawyer leverage in working with a client who is a cheat and a liar and wants to be above the law," said Roger C. Cramton, a legal ethics professor at Cornell Law School.Supporters of the proposed change add that the privacy of clients will not be abused.

"Lawyers are not going to make these judgments lightly," said Nancy J. Moore, a Boston University law professor who helped to draft the proposed rules. "They don't view themselves as whistle-blowers."

The confidentiality measure and the other current proposals for the convention are amendments to rules debated in 1982 and approved in 1983. Since then, 41 states have adopted those rules, often with alterations. It could take until next summer for the association's governing House of Delegates, which has about 500 members, to take a final vote on all of the proposed rules. Violations of ethics laws enacted by the states can be punished by sanctions ranging from censure to disbarment.

Another measure stirring debate would forbid sex between lawyers and clients. The number of complaints involving such relationships has mushroomed, ethics experts say, and some states have adopted their own rules. In a sign of changing times, the issue was hardly acknowledged when the current rules were written nearly two decades ago.

The proposed measure would flatly prohibit "sexual relationships with a client unless the sexual relationship predates the formation of the client-lawyer relationship.

"While the rule's advocates say that lawyers are in a position to take advantage of their clients, its critics say the proposed measure is too inflexible.  Kurt W. Melchior, a San Francisco lawyer, said the proposal would even go so far as to bar a lawyer who represents a corporation from a fully consensual romance with, for example, a tax accountant at that corporation. The proposal, Mr. Melchior said, "creates the bedroom police" by making such innocent relationships subjects that could provoke professional discipline.

Some of the new provisions are designed to close loopholes that are embarrassing in other ways. An existing rule, for example, says lawyers should not "make a false statement of material fact" in court. The new rule would remove the word "material," making it plain that, in court at least, lawyers should tell the whole truth.

Partial truths must not appear to be adequate in court, Ms. Moore said, adding, "As a public statement, of what lawyers were all about, it looked bad.

"Some of the proposals are designed to limit conduct that has generated complaints. A proposed rule would require that all fee agreements be put in writing. Some lawyers say it is needed because clients often file complains asserting that lawyers misled them about fees. Other provisions signal an effort to modernize rules that predate, for example, the Internet.

Existing rules say that lawyers may seek new clients in writing, like in advertising, but that they may not solicit business in person or over the phone. The rules grew out of a concern that if lawyers were permitted to interact directly with potential clients, they would exert excessive influence and encourage suits that might not otherwise be filed.

The Internet has muddled the situation. Lawyers are unsure whether contact with the public over the Internet is permitted, like advertising, or prohibited, like in-person or telephone solicitation.

The proposed new rule would treat real-time electronic contact like chat-room conversations the way it would treat in-person contacts, declaring that it is generally improper for lawyers to solicit business in live on-line legal forums.

Many of the combatants heading to the Chicago convention say the debate over rule changes will be significant. But some veterans of legal ethics debates say such debates are often conducted at high volume because lawyers are more concerned with rules governing lawyers than just about anyone else.

Geoffrey C. Hazard Jr., a legal ethics professor at the University of Pennsylvania who was a central figure in the 1982 debate, said he had noticed the increasing volume of the battle over when lawyers could disclose information they learned from clients.

As in 1982, when a similar proposal was advanced and defeated, Mr. Hazard said, lawyers are vociferous far, he said, he had not been impressed by the arguments. "I've gotten so jaded at the rhetorical intensity of lawyers over this," Mr. Hazard said.

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