Thou Shalt Not Go Public

The nation's lawyers cast a vote for client confidentiality

Over drinks, your client shares a disturbing bit of news. The bid you have been helping him prepare for construction of the new city hall is a sure winner because he has arranged to slip the mayor $10,000. You choke on an hors d'oeuvre, pondering the lawyer's age-old dilemma: what to do about a client who admits to being involved in an ongoing crime.

Under present ethical provisions in most states, an attorney might choose to persuade the client to abandon any unlawful scheme, or he might stop representing him. Finally the lawyer probably has the option of informing authorities about his client's plans without violating the rules of confidentiality. At the American Bar Association's midyear meeting in New Orleans last week, the policymaking House of Delegates was asked to approve new standards specifying situations that could call for such disclosure. Instead, by a surprising vote of 207 to 129, the delegates barred disclosure unless the crime is "likely to result in imminent death or substantial bodily harm."

To many the action looked unseemly. Said Phoenix Lawyer Mark Harrison: "This vote will enhance the mouthpiece image for which many lawyers are known." Next day, as if to make amends, the delegates, by a 2-to-1 margin, embraced a newly explicit requirement: a lawyer must reveal perjury committed by his client in court. "The two votes were as inconsistent as they could possibly be," said Hofstra Law Professor Monroe Freedman, an ethics expert who believes in strict confidentiality. "I think the second vote was, more than anything else, an image vote."

The delegates' actions last week were a dispiriting setback for an A.B.A. commission that has been working since 1977 to reshape the association's 14-year-old code of ethics. While the revisers probably will succeed in eliminating much of the confusion in the current code, which in many instances seems to offer two different standards of conduct, their further goal of heightening a lawyer's duty to the public is now out of reach. The rules approved in New Orleans are likely to be formally ratified by the A.B.A. in August, and will serve as a new model for states to adopt.

The disclosure debate went to the very heart of what a lawyer should be. The responsibility to be honest with others is the higher value for reformers. Boston Attorney Robert Meserve, who became chairman of the ethics commission after the death last month of Omaha's Robert Kutak, noted that lawyers have been able to (and still can) disclose confidential information from a client in order to recover a fee. But to Theodore Koskoff, past president of the Association of Trial Lawyers of America, "The philosophy of the proposed code was wrong. The thread that ran through it was of looking at a lawyer not as a champion but as an ombudsman." The adversary system would be undermined if a client hesitates to tell his lawyer the truth, argues Leon Silverman, president of the American College of Trial Lawyers. "It isn't that we want anyone to get into bed with criminals. We are trying to protect one of the great interests of society."

Though the debate occupied most of the delegates' energy and time, ethics was not alone on the agenda. Attention was also given to the Supreme Court's work load (see box) and the campaign to limit the insanity defense. In most states, a defendant may not be convicted if he is unable to tell right from wrong at the time of the crime or if he was subject to an irresistible impulse. The delegates voted to urge states to retain the first but eliminate the second as a ground for acquittal. Sponsors of this "compromise" said that had it been the law under which John Hinckley was tried, he would probably have been convicted. This file is automatically generated by a robot program, so viewer discretion is required.