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Posted by John Steele at 03:53 AM | Permalink
I think Andrew's comments are correct. My own research showed that treating a 1.6 disclosure (assuming that as in Massachusetts disclosure to avoid improper incarceration was permitted) as waiving the privilege would result in fewer lawyers making permitted disclosures. If you are interested in the research, see Mitchell M. Simon, Discreet Disclosures: Should Lawyers Who Disclose Confidential Information to Protect Third Parties Be Compelled to Testify Against Their Clients? 49 S. TEX. L. REV. 307 (2007)
Mitchell Simon |
February 20, 2013 at 08:53 AM
I didn't realize that attorney-client privilege survived the death of the client. Isn't that a different question, the rights of the deceased client, who obviously cannot have a negative result from such a disclosure?
February 20, 2013 at 03:01 PM
Judith, in the case involving the death of Vince Foster (a friend of the Clinton's working in the White House travel office) the US Supremes held that the attorney client privilege survives the death of the client (see the citation to wiki below) and it's also true that the duty of confidentiality survives the death of the client. In the case the court concluded that a person does have an interest in how they are perceived after their death.
John Steele |
February 21, 2013 at 01:13 AM
When analyzing issues of confidentiality, we ordinarily focus on the language of the applicable rule that effectively defines the information that is to be protected. In the 1983 Model Rules, that language is all “information relating to the representation of a client” (MR 1.6). In the 1969 Model Code, it included all “information gained in the professional relationship” (Disciplinary Rule 4-101). In the 1908 Canons, the reference was simply to a duty to “preserve his client’s confidences” (Canon 37).
However, there is a limitation on the mandatory protection of confidentiality that is not ordinarily material to analysis. That is, client information is not protected by a duty of confidentiality if divulging the information would not harm or embarrass the client in any significant way (unless the client has specifically requested that the information be kept confidential).
In the early Canons, for example, the lawyer is forbidden to disclose information “to the disadvantage of his client” (Canon 37). Similarly, in the Model Code, the information protected is limited (although very broadly) to that which the client asks to be kept confidential or to that which “would be embarrassing or would be likely to be detrimental to the client” if divulged (DR 4-101). Also, Ethical Consideration 4-7 of the Model Code, in discussing cases of discretion to disclose, refers to “disclosure adverse to the client’s interest” as the essential concern of confidentiality.
The text of MR 1.6 does not expressly include reference to information that is not disadvantageous, embarrassing, or detrimental to the client. However, it is reasonable to read the rule to include that century-old, common-sense aspect of confidentiality – that is, that there is no reason to maintain confidentiality if divulgence would not cause any disadvantage, embarrassment, or detriment to the client.
Moreover, comments to other provisions of the Model Rules expressly recognize that there is no proscription against revealing client information under MR 1.6 if disclosure does not harm the client’s interests in any significant way.
For example, citing MR 1.6 and other rules, Comment 5 to MR 1.8 says that “[u]se of information relating to the representation to the disadvantage of the client violates the lawyer’s duty of loyalty” (emphasis added). The comment adds that the rule prohibits “disadvantageous use of client information.”
Also citing MR 1.6, Comment 5 to MR 2.3 distinguishes a case in which it is “reasonably likely that [disclosing the information] will affect the client’s interests materially and adversely” from a case in which disclosure “poses no significant risk to the client.”
In the case involving Macumber, therefore, I would say that the lawyer was probably permitted to disclose the exculpatory information after the client had died. Prior to that time, the client could have been prosecuted for the crime. However, once the lawyer’s client had died, there was not likely to be any embarrassment or harm to the client’s survivors by disclosure of his guilt (which is a legitimate concern of clients). His admission of guilt of the crime for which Macumber was charged does not appear to have posed a significant risk of affecting his interests materially and adversely.
However, if the client had survivors, and if the lawyer had any reason to believe that they continued to believe the client to be innocent of the crime, or the client had an estate that might be liable civilly, the lawyer should not have revealed the information.
Monroe Freedman |
February 21, 2013 at 08:10 AM
I agree that the lawyer had the right to disclose the information. The harder question, in my view, is whether the disclosure waives the privilege so that the lawyer could be forced to testify. What's your take on that question?
Andrew Perlman |
February 21, 2013 at 12:59 PM
Just to clarify, the lawyers in the case WANTED to testify; they were not being "forced" as I suggested above. The point is that they weren't allowed to do so because the privilege was considered to have remained intact despite the disclosure. So more precisely, the question is whether the privilege should be considered to be waived because of the lawyers' disclosure of the confidential information.
Andrew Perlman |
February 21, 2013 at 02:01 PM
I have a bit of a different take. I think Monroe's description comports with the Restatement's confidentiality rules and makes a good deal of common sense. But I wonder if it is consistent with the rules. As a matter of construction, I see the differences between the Code and Canons, and the rules as indicating that the scope of what needs to be protected from voluntary disclosure is broader under the rules. I don't mean to be overly technical in my reading and think we should do all we can to avoid an innocent person remaining in jail. But I don't read the rule as being qualified by a harm or embarrassment standard. I think the comment to Rule 1.8, while certainly relevant (but used in a different context) is not clear enough to overrule the plain language.
Also the decision of states such as Massachusetts to explicitly grant an exception in this situation seems relevant. I have always believed the right to disclose here should exist and think Massachusetts has it right.
I also think the standard of harm to the client is a tough one to apply. When I do CLEs for firms, I urge them to read 1.6 broadly since I don't see countervailing principles that should allow us to discuss our cases even if we don't think the information is likely to be harmful to our client. I have far too many lawyer friends who disclose, in small town NH, facts that are troubling based on the notion that they won't harm the client.
I think clients largely deserve our silence (a concept that angers my wife on a weekly basis). Of course, in cases of harm to third parties, etc. we have made explicit exceptions. Allowing lawyers to qualify what is covered under 1.6 with our own notion of what is harmful to the client may not be wise.
As applied to Macumber, I would, as his lawyer, have a hard time knowing conclusively if there are relatives who might be holding on to the notion that he was innocent or whether he sought to have his family remember him in a different light. This is not to suggest that this is sufficient reason to allow an innocent man or woman to sit in a jail cell. But I think the broader principle of what is included in confidential information is one I would like viewed in a more protective manner.
As to privilege,I don't think the lawyer is authorized to waive in this situation. Unless the court recognizes what is often called the "miscellaneous" exception (which some states, including NY I think, have done), I see privilege as being a bar to testimony.
Mitchell Simon |
February 21, 2013 at 02:51 PM
Actually I agree with your take on the scope of Rule 1.6. When I give CLEs and teach 1.6 to my students, I tell them the Rule is quite broad in its reach and covers (for example) client identity, even when the client's identity may be a matter of public record and the lawyer's disclosure of it will not be embarrassing to the client. So I would stick by my quote in the article rather than what I wrote above and say that I think there SHOULD be an exception to Rule 1.6 that allows lawyers to disclose the kind of information that was at issue in Macumber. As you note, Massachusetts and a couple of other states already have such an exception.
In any event, the Rule 1.6 issue is separate from the privilege issue, as cases like Purcell (from Massachusetts) reveal.
Andrew Perlman |
February 21, 2013 at 04:41 PM
Your questions go to issues of evidence rather than ethics. And I need more facts.
If, as in the Mass. case, the lawyer has revealed client confidences to prevent the client from burning down a building with the occupants in it, the court should not then force him to testify against the client in a criminal trial.
If the lawyer discloses information to the attorney representing the innocent client on death row, to help to exonerate that client, then whether a court should force the lawyer to testify should depend on the factors discussed in my earlier post.
Monroe Freedman |
February 21, 2013 at 05:48 PM
I agree with you completely, Monroe, that the case raises issues of evidence rather than ethics. But I interpreted your earlier post as addressing only the ethics question of whether the lawyer should be permitted to disclose the information. Just because the lawyer was (or should be) permitted to disclose the information as a matter of ethics does not mean that the information should be admissible as a matter of evidence. Are you suggesting that your analysis of both questions in this case would be the same (i.e., that your analysis in favor of allowing disclosure as a matter of ethics also favors a finding that the privilege no longer applies)?
Andrew Perlman |
February 21, 2013 at 06:32 PM
As I said, I need to know the facts in the particular case. I think the response I gave gives a general view of my position.
Monroe Freedman |
February 21, 2013 at 08:20 PM
I agree that the privilege and confidentiality issues are separate and that facts are a key to the further analysis. But based on the cursory facts we have, I would analyze the Macumber case this way: 1. The conversations were initially privileged; 2. The privilege survived his death; 3. The client did not waive the privilege; 4. The lawyer was not authorized by the client to waive the privilege; and 5. Unless the jurisdiction adopts what is often called the "miscellaneous" exception to privilege (which allow a broad balancing of the relative interests at stake, and which to the best of my recollection is not a widely adopted rule), there is no exception that would justify admission of the evidence.
I note that this is the type of case, with such a profound injustice, that might cause a judge to adopt and apply the exception. But there has been much debate in the evidence and ethics worlds about the policy issues than making the privilege this indefinite raises.
mitchell Simon |
February 22, 2013 at 09:43 AM
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