Lawyers and Ethics to Disclose

Lawyers and Ethics

TO DISCLOSE OR NOT TO DISCLOSE

Lawyers are bound by oath never to reveal information gathered in the entire duration of their representation of a client or a professional relationship with him. The rule of confidentiality has been preserved and cherished for ages. The purpose is to draw the trust of a client into telling all to his lawyer or attorney as the only way he can negotiate for the maximum benefit to the client. But discretionary disclosure exempts the lawyer from the confidentiality oath. 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 placed by the client on his counsel or attorney in whom the client must trust completely. The U.S. Supreme Court in Upjohn Co. v United States 449 U.S. 383 (1983) summarized the purpose of this Rule from 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 public interests 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 or attorney and his relationship with the client into an issue. The rule is basically designed to learn the facts of a case from a client rather than hide them. The purpose is to enable the lawyer to advance the client's cause, which hiding the facts cannot. At the risk of severe penalty, such as disbarment, a lawyer may not reveal information gathered in the entire duration of client-lawyer relation except under certain conditions. These are when the client consents to the disclosure; when the attorney reasonably believes that the disclosure will prevent the commission of a criminal act by the client that will result in another person's death or bodily harm; and if the disclosure will defend the lawyer in an eventual controversy between them (Stuart).

Discretionary Disclosure

Rule 1.6 expressly prohibits a lawyer from revealing information relating to a client's past crime (Hill & Bleibert, 2013). For example, if the client confides that he murdered anyone and hid the body, the lawyer may not reveal this to the family of the victim or the authorities. The rule of confidentiality consists of two concepts: the confidentiality of information shared and the attorney-client privilege. The attorney-client privilege involves only confidential or privileged communication. Rule 1.6 covers all information gathered in connection with the representation from any source. The rule of confidentiality sometimes clashes with personal responsibility when the lawyer becomes aware of his client's crimes in the past, at present or the future. He gets torn between the sworn duty to keep all relevant information confidential and the moral duty to do something about his knowledge of a crime. He needs to know how to apply or invoke discretionary disclosure and how far he may disclose. The validity of the action is determined by the timing and scope of the attorney-client relationship. Information gathered before the start of the relationship is not protected by this Rule. The attorney cannot make that information privileged by entering into an attorney-client relationship with the involved person. And matters outside and beyond the scope of the subject matter of the relationship are not confidential (Hill & Bliebert).

Key Effects

A lawyer who learns about his client's secret must consider the different effects of three different actions or options open to him (Schneider & Levinson, 2005). One is the effect of revealing the secret. Another is the effect if he does not reveal it. And the third is the effect that non-revelation will have on him and his relationship with the client. If the lawyer chooses the first option for any of the justifications or exceptions earlier mentioned, the client must face the consequences of his crime, the victim is vindicated while the attorney is not disbarred. It has been found that disclosure is beneficial in most situations. The option not to reveal may be his choice because the situation is not an exception and he is bound completely to the rule of confidentiality. But experience shows that the concern for the safety of others, particularly of possible or future victims, becomes stronger than the rule of confidentiality or an attorney's loyalty to the client. The attorney should continue to encourage the client to confess his own crime for his own benefit in the long run. And the effect that non-revelation will have on the attorney and his relationship with the client is that it can erode the integrity of the relationship itself. It must be built on honesty and integrity. The attorney cannot be effective by colluding with a guilty client. He must tell the client that the truth will eventually come out (Schneider & Levinson).

Resolving an Ethical Dilemma

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

The first is to analyze and consequences (White, 1993). Even if applicable, the discretionary disclosure option is not an obligation. The attorney may choose to simply keep quiet and stay away from complications. It is the job of the police and the courts to seek out and punish offenders. He would not risk getting penalized or disbarred. But when considering all positive and negative consequences, both in short- and long-term, colluding may be the worse choice to make. The second step is to analyze the options from a different perspective, namely the correctness of the action of withholding itself. Will the attorney feel at par with moral principles of honesty, fairness and dignity? If there is conflict, is one of them actually more important than the other or other considerations? And the third is to make the decision from the results of the first two steps (White).

Conclusion: Response/Tackling the Dilemma