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Looser lips chip away at core value

By Diane Karpman

Diane Karpman

Disagreement regarding the “role” of lawyers in our society has resulted in a profound schism in our profession. That division exploded at the ABA Annual Meeting in San Francisco last month.

Out-of-state lawyers, most of whom follow some version of the ABA Model Rules, conceive of lawyers as superheroes. They maintain that if lawyers had looser duties of confidentiality, then these caped crusaders could have prevented the Corporate Debacle. Somehow, if lawyers could disclose confidential client information, where use of the lawyer’s services resulted in a crime or a fraud, that would fix all the problems in our economic sector.

Forget all about sleazy accounting causing daily restatements of earnings, mega-watt power laundering and corporate unaccountability.
Governmental agencies were hovering over the battlefield. Never mind that the SEC already has the Sarbanes-Oxley legislation. The IRS is demanding that Jenkins & Gilchrist turn over the names of the law firm’s clients who consulted on tax shelters.

The Justice Department listens in on attorney-client conversations at Guantanamo Bay and cannot understand why legions of defense lawyers are not jumping at the opportunity to enjoy the endless beaches, the tropical climate and the opportunity to “defend” the detainees.
Wait a minute! Wasn’t maintaining the core value of confidentiality the flash point in the multidisciplinary practice debate a few years ago, when the mega-accounting firms wanted to partner up with lawyers?

Didn’t the ABA say “no” to the lure of vast riches, because lawyers had to protect the confidentiality of clients? Oh, yes, but that was before governmental barbarians were knocking at the gates of professional regulation, which might be slipping out of the hands of the ABA.

And carriers are still grumpy about the payouts for law firm negligence involved in the S&L debacle. These are some of the hidden agendas, but the problem with understanding hidden agendas is that then the conduct may appear a bit less principled.

Maybe someone forgot that the rules are designed to empower and protect clients, not lawyers.

California lawyers do not subscribe to the model of lawyer as superhero. California attorneys have statutorily imposed duties of confidentiality that are the most stringent in the nation. During the debate in the ABA House of Delegates, that difference was pointed out by one of the speakers, who tried to discount some comments in opposition to the confidentiality change, by using the “C” word. Yes, we were called “Californians.”

That’s fine with me. When clients find out about these seismic changes, they are not going to be happy. They will know that they have lost their trusted advisors, their advocates, their champions and the opportunity to be talked out of illegal conduct.

They may seek out California lawyers whose lips will remain sealed. Therefore, in anticipation of all the new business, remember not to get “mobbed up,” and just say “no” to the drug cartels.

Diane Karpman can be reached at

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