Confidentiality under siege

By James O. Heiting
President, State Bar of California

Heiting

The attorney-client privilege and confidentiality are being attacked on all sides. One can always justify, at least in one’s own mind, why an attorney, priest, doctor or other confidant would be required to disclose “in the public interest” information from those who confide in them, which information could be damning or incriminating.

But the corpus of attorney-client confidentiality was recently reduced by the passage of a law that permits an attorney to disclose threats of death or great bodily injury made by the client toward another. This, of course, creates potential conflicts in the attorney-client relationship and it is also tremendous exposure to liability for the attorney who fails to disclose a threat that is ultimately carried out. When we considered this issue at the board of governors a couple of years ago, I am sorry to report that mine was the only voice supporting the maintenance of confidentiality. Many of those who supported change then have since acknowledged the evolution of the issue and agree that confidentiality should be preserved.

We see the slippery slope beginning to form in earnest. We are currently facing proposed legislation to allow government attorneys to “sidestep confidentiality” and report what (they think) may involve harm to the public interest. The attorney need simply “reasonably believe” that something less than disclosure by breach of confidentiality would be “futile.”

The Supreme Court case of Upjohn Co. v. United States speaks to the attorney-client privilege and work product as related to corporate misconduct and a law firm’s internal investigation. The court points out that “the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.” If there were no protection of privilege, the employees would be discouraged from communicating, and that would “[threaten] to limit the valuable efforts of corporate counsel to insure their client’s compliance with the law.”

Even so, in 2003, then-Deputy Attorney General Larry Thompson issued a memorandum addressing “principles of federal prosecution of business organizations” in which he urged that one of the factors to be considered was the corporation’s willingness to waive the attorney-client privilege and work product protections to demonstrate cooperation. 

The evolution has continued with official writings such as the commentary to Sec. 8C2.5 of the Federal Sentencing Guidelines (November 2004), encouraging waiver of the attorney-client and work product protections to show “thorough cooperation” with the government and thereby qualify for more lenient sentencing. 

If we go down this road, expect to see the erosion of our relationships, with not just those in government, but with an infinite number of litigants, clients, and potential clients as we put their confidences at risk. Investigation, impressions, opinions, preparation and conclusions will be exposed. The threat of disclosure could become a means of manipulation of clients by attorneys.

Are we soon to be expected to be the judges and juries of our own clients, reporting to authorities what we think might evidence wrongdoing? Is violation of confidentiality becoming something to honor rather than condemn? When did our oath to maintain confidentiality take second place to an individual’s decision that they didn’t like what their client was doing? 

The standards are higher, more personal. They involve the attorney-client relationship, the role of an attorney as a professional and the oath to hold the confidences of the client inviolate. Should the client stray from the moral and legal standards in place and by which the attorney lives his/her life, the attorney need only terminate that relationship, not continue on while compiling personal frustration (and, on the side, information and evidence of perceived wrongdoing). The right approach: leave the relationship at the earliest time it becomes evident that your advice, standards and ethics cannot be maintained.

In order for us to give the best advice, in order for the client to understand that we are giving advice based on full and complete information, and in order that the client can trust us and trust in us, the relationship between attorney and client, including complete confidentiality, must be maintained.

Attorney-client privilege and confidentiality are the foundations of trust and confidence in counsel historically and rightfully recognized as fundamental. Ultimately, the public, and clients, are best served by their preservation. Please join me in this stand.

On a separate topic, I take this opportunity to acknowledge two giants who dedicated their lives as servants of lawyers and the public: Jim Pfeiffer, who served as executive director of the State Bar Foundation and was the force behind many of its programs, scholarships and grants; and J. William “Bill” Beard, former state senator and retired San Diego Superior Court judge, one of the original founding members of The Other Bar. Both recently passed on. They made a real difference.

Let’s go out and do some good.