I don't want a lawyer to tell me what I cannot do; I hire him to tell me how to do what I want to do.

J.P. Morgan[1]

When there's a rift in the lute, the business of the lawyer is to widen the rift and gather the loot.

Arthur Garfield Hays[2]

Introduction

Carrie Client worked for ABC Corporation as a bookkeeper. Carrie had been stealing money from ABC Corporation for five years. Victor Victim, a vice president with ABC Corporation, became suspicious that Carrie was stealing from the company. Victor approached Carrie about his suspicion, and she vehemently denied the accusation. Carrie became concerned that Victor would continue to examine the books and discover that she had in fact been stealing from the company. Although Victor was a married man, Carrie began to flirt with him and persuaded him to engage in an extramarital affair with her. Once Victor and Carrie began their affair, he ceased to ask her questions about his suspicion. After two years of having an affair with Victor, Carrie wanted to end the relationship. She told Victor this, and he became very angry, threatening to examine the company books and prove that Carrie was stealing from the company. As Victor turned to walk away from Carrie, she hit him over the head with a brass statue that was in the room. The blow killed Victor instantly. Carrie called her cousin, Arnold Accomplice, and he helped her bury the body.

The following week, detectives interviewed Carrie, as well as other employees, because Victor's wife had filed a missing person's report. The police learned from one of the employees that Carrie and Victor had had an affair. The police also found a note in Victor's file about his suspicion that Carrie was stealing from the company. The detectives questioned Carrie extensively about her relationship with Victor and about Victor's suspicion. Carrie denied that she and Victor had had an affair, and she denied that she knew of Victor's whereabouts. The police informed Carrie that they would question her later.

Carrie ran to the office of Lena Lawyer. Carrie informed Lena that she was stealing from the company and that she had had an affair with Victor. Carrie also told Lena that she had hit Victor in self-defense and that she had disposed of the body with the assistance of her cousin on her grandmother's farm. Although the police never located Victor's body, they possessed sufficient evidence that he was dead.

Carrie was tried for the murder of Victor. In the middle of the trial, Carrie killed herself. Brendan Barrister handled the trial because Carrie had fired Lena over a fee dispute.

An attorney-client relationship began when Carrie sat down to discuss her legal problem with Lena Lawyer. As a result, Lena Lawyer must keep all the information that she had received from Carrie Client confidential, unless some exception to the attorney-client privilege applied.[3]

This hypothetical triggers the application of the attorney-client privilege and the ethical rules of confidentiality. In order to encourage “frank and candid” communications between the lawyer and the client, the attorney-client privilege and the ethical rules of confidentiality mandate that the lawyer keep the client's information in confidence.[4] However, circumstances exist where the lawyer may reveal the client's confidential information. One such circumstance is a fee dispute between the lawyer and the client.[5] Consequently, while Lena Lawyer cannot reveal her client's confidential information to assist in a criminal investigation or to assist the family of Victor Victim in burying him, Lena may be able to reveal this information to resolve a fee dispute with Carrie Client.

This Article examines the application of the attorney-client privilege, the ethical rules of confidentiality, and a lawyer's duty to maintain his client's information in confidence. First, this Article will review the “confidentiality principle” and its historical origins. This Article will use the term “confidentiality principle” to describe the lawyer's obligation to keep the client's information secret under the attorney-client privilege, as well as the lawyer's ethical obligation to keep the client's information secret. Second, this Article will critique the confidentiality principle and discuss the inherent contradiction that precludes a lawyer from revealing confidential information when there is a strong societal need for that information, yet allows the lawyer to reveal the same confidential information to serve the lawyer's self-interest, such as the recovery of legal fees. Third, this Article will discuss how courts apply the confidentiality principle in cases where society has demonstrated a strong need for the information. Finally, this Article will apply the confidentiality principle to the hypothetical between Carrie Client and Lena Lawyer to highlight the hypocrisy of the confidentiality principle and the hypocrisy of the ethical rules that govern lawyers. This Article will conclude that courts and bar associations should revise the confidentiality principle and allow lawyers to reveal confidential information when a strong societal need for the information exists. Specifically, the confidentiality principle should not provide greater protection than the Fifth Amendment right against self-incrimination. Consequently, if a party demonstrates a compelling need for confidential information, a court should be able to require the lawyer to disclose that information, unless the information is protected by the Fifth Amendment.

I. Confidentiality: The Lawyer's Duty to Keep the Client's Information Secret

The information that a lawyer receives from his client is subject to the laws and rules that protect the confidentiality of client information. These laws and rules derive from the rules of professional ethics and the evidentiary attorney-client privilege. While the rule of confidentiality established by the rules of professional ethics is broader than the attorney-client privilege,[6] the rationale behind each is the same.[7]

A lawyer owes an ethical obligation to his client to maintain confidences even if the confidences are not privileged.[8] The ethical obligation to maintain confidences is incorporated in Rule 1.6 of the ABA Model Rules of Professional Conduct (“Model Rules”), which provides:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or

(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.[9]

The ethical obligation to respect client confidences arises from broad policy considerations. Pursuant to Rule 1.6, the duty of confidentiality is directed towards the attorney. Rule 1.6 provides that an attorney should not disclose information that the attorney has learned about a client regardless of where or how the attorney obtained that information.[10] While either the attorney or the client can waive the attorney-client privilege through disclosure to a third party, this disclosure will not waive the duty of confidentiality under Rule 1.6.[11] Pursuant to Rule 1.6, an attorney is still ethically obligated to maintain the confidences.[12]

The attorney-client privilege is an evidentiary privilege applicable primarily in judicial proceedings.[13] Courts construe the privilege narrowly and only apply it in those situations where the party invoking the privilege “consulted an attorney for the purpose of securing a legal opinion or services . . . and in connection with that consultation has communicated information which was intended to be kept confidential.”[14] Moreover, the attorney-client privilege protects only the communications themselves, not the underlying facts.[15]

The attorney-client privilege requires four basic elements: (1) A communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining, or providing legal assistance to the client.[16] The attorney-client privilege is a rule of evidence that precludes another party in litigation from asking either a client or a lawyer what either has exchanged for the purpose of furnishing or obtaining professional legal advice or assistance.[17] The policy basis of the attorney-client privilege rests upon three assumptions.[18] First, the policy assumes that having the assistance of a legal advisor is useful to a person.[19] Second, the policy assumes that “the lawyer's legal advice and assistance must be based upon a firm grasp of the facts” and of the client's objectives.[20] The third and most controversial assumption is that lawyers must “be able to assure clients that their private conversations will always remain confidential.”[21]

In 1986, the American Law Institute (“ALI”), a group of practicing lawyers, judges, and academics, began drafting the Restatement (Third) of the Law Governing Lawyers.[22] The ALI did not radically change attorneys' duties to maintain their clients' confidential information. Rather, the Restatement (Third) of the Law Governing Lawyers provides black letter rules that are consistent with the rule of confidentiality found in the Model Rules and with the attorney-client privilege as defined by the United States Supreme Court.[23]

II. The Origin and History of Confidential Information Between Lawyer and Client

The requirement that lawyers keep client information confidential derives from the belief that in order to have an effective attorney-client relationship, a client must feel comfortable that the lawyer will keep the client's information in confidence.[24] Although the history of the legal and professional protection of confidentiality is unclear, the assurance of free and frank discussion between the client and the lawyer was not the original purpose. Rather, lawyers originally owed a duty of loyalty to their clients because the attorney-client relationship was like that of a master-servant.[25] Max Radin, in a frequently cited article discussing the origins of the confidentiality rule, stated:

A servant must keep his master's secrets, and however honored and influential a servant, an attorney was for a long time definitely in that class and kept something of that standing, although, to be sure, he was never a “servant” in the specific sense which the English law attached to [the] term.

The duty of loyalty on the part of servants was an obvious and general one, based upon normal human feeling, and scarcely needed authority to establish it.[26]

Attorneys have owed a duty of loyalty to their clients since the time of the Roman Empire.[27] Under Roman law, the attorney held the privilege; under today's law, the client holds the privilege.[28] Further, the rationale for the rule has changed.[29]

During the times of the Roman Republic, an attorney owed a duty to his client in the same way that a slave owed a duty to his master.[30] An attorney, as an advocate for his client, could not speak against his client while the client's case was in progress.[31] The rationale for excluding the attorney's testimony was that an attorney, like a servant or family member, was not credible if he was speaking against the master or family member because he would have an incentive to lie.[32] If the attorney testified against his client, Roman courts viewed him as “a disreputable person and unworthy of belief.”[33]

Under English law, the notion that an attorney owed a duty of loyalty to his client continued. While no proof exists that the Roman rule was the origin of the English rule, Roman precedent may have influenced its formation.[34] The privilege has been an effective bar against disclosure under English common law since the reign of Queen Elizabeth I.[35] The rationale for the privilege was grounded in the belief that the oath and honor of the attorney protected him from being compelled to disclose his clients' secrets.[36] This early English view placed a greater emphasis on the code of honor, unlike today's view, which puts a greater emphasis on protecting the client.[37]

In the early 1700s, the view of the attorney-client privilege shifted its emphasis from the attorney's honor to the client's needs.[38] The belief developed that the client needed assurance that matters shared with the attorney would be kept in confidence.[39] The development of the privilege stalled during the 1700s and was not completely developed until the mid-1800s.[40] The privilege made its way into American law in the 1820s and, with the influence of English law, became what it is today.[41]

The attorney-client privilege formed the basis for the ethical rules of confidentiality protections.[42] In the early 1900s, lawyers began developing ethical standards that would govern the legal practice.[43] In 1908, the American Bar Association (“ABA”) adopted its first code of professional ethics, the Canons of Professional Ethics (“1908 Canons”).[44] The ethical rules governing attorneys have changed over the years, and the confidentiality principle has changed with those rules.[45] The 1908 Canons stated, without much detail, that the lawyer owed a duty to protect a client's confidences.[46] This duty also prohibited conflicts of interest in successive representations if the representation would require disclosing secrets or confidences of the attorney's former client.[47] Even from its inception, however, the confidentiality principle was not absolute, and some circumstances allowed or required lawyers to disclose the client's confidences. The 1908 Canons established that the confidentiality principle would yield to an attorney's need to defend against a client's accusation of malpractice or to prevent future crimes.[48] Further, an attorney could not assist his client in fraud or deception upon the court or against another party.[49] The 1908 Canons was in place from 1908 through 1969, when the Model Code of Professional Responsibility (“Model Code”) largely superseded it.[50]

The Model Code went further than the 1908 Canons had in defining confidentiality. The Model Code used the terms “secrets or confidences” from the 1908 Canons and established the coverage of the confidentiality principle.[51] The confidentiality principle under the Model Code was broader than it had been in the 1908 Canons; the Model Code protected secrets that the client did not want revealed, in addition to protecting confidences that the attorney-client privilege already guarded.[52] The Model Code further established that an attorney owed a duty of loyalty to his client that included a limitation on the use of the client's information to uses that benefited the client.[53] Like the 1908 Canons, the Model Code did not impose on the attorney an absolute duty to maintain a client's secrets. The Model Code included the same exceptions to the confidentiality principle as the 1908 Canons had included, but it expanded the circumstances where an attorney could disclose information.[54] In particular, the Model Code allowed an attorney to disclose his client's confidential information to protect the attorney's interests which had developed as a result of his relationship with the client.[55] However, the Model Code protected attorney-client confidentiality involving possible fraud upon the court more than the 1908 Canons had.[56] Under the Model Code, an attorney could not disclose past client fraud to the court if the attorney learned of the fraud through privileged communication.[57] The Model Code made it clear that the confidentiality principle outweighed an attorney's duty of candor to the courts.[58] The legal profession experienced significant changes between 1969 and 1980, the decade that followed the ABA's adoption of the Model Code.[59] The ABA adopted the Model Rules to improve the legal profession's reputation in the post-Watergate era.[60] However, the Model Rules did little to enhance the legal profession's status.

While it may have been relatively unsuccessful in enhancing the profession's status, the Model Rules did substantially change the rules that govern attorneys. For example, the Model Rules expanded the scope of the confidentiality principle.[61] As noted earlier, Model Rule 1.6 provides that a “lawyer shall not reveal information relating to the representation of a client . . . .”[62] The Model Rules does not make a distinction between a client's confidences and a client's secrets.[63] Furthermore, the Model Rules requires that a lawyer maintain his client's confidences regardless of whether the lawyer acquired the information before or after the formation of the attorney-client relationship.[64] The other significant difference between the Model Rules and the Model Code lies in the exceptions to the confidentiality rules. The Model Rules allows a lawyer to disclose information where he is impliedly authorized to do so in order to carry out the representation of a client. Under the Model Code, however, a lawyer could disclose information only if his client authorized the lawyer to do so after full disclosure.[65]     

Additionally, the Model Rules limited the exception which would allow a lawyer to disclose information regarding ongoing or future crime. The Model Rules allows a lawyer to reveal information in order to prevent “imminent death or substantial bodily harm,” while the Model Code allowed the lawyer to reveal his client's intention to commit a crime, regardless of the crime's seriousness.[66] Also, while both the Model Rules and the Model Code allowed a lawyer to use confidential information to defend against a claim arising out of the lawyer's representation of his client, the Model Rules expanded this exception. Under the Model Rules, the lawyer can reveal confidential information to assert any claim or defense that arises out of the representation, while the Model Code limited this exception to a lawyer's fee collection and to defense of a client's legal malpractice claim.[67]

III. Critique of the Confidentiality Rule

A. Historical Attack on the Confidentiality Rule

Scholars have attacked the confidentiality principle since early 1800s,[68] and this attack continues to the present day.[69] Jeremy Bentham's critique deserves particular attention because he was the first scholar to attack the confidentiality principle.[70] Marvin Frankel's comments also deserve attention because he took the radical step of criticizing the confidentiality principle at a time when it was very well respected, and more importantly, as a member of the Kutak Commission, which drafted the Model Rules, he influenced some of the changes in the confidentiality principle.[71] Mr. Bentham and Mr. Frankel also criticized the attorney-client relationship and the role that the confidentiality principle plays in shielding clients and impeding access to the truth.

Mr. Bentham attacked the privilege as anti-utilitarian.[72] He reasoned that because the innocent did not need the privilege, the privilege only protected the guilty.[73] Mr. Bentham observed:

But if such confidence, when reposed, is permitted to be violated, and if this be known . . . the consequence will be, that no such confidence will be reposed. Not reposed? Well: and if it be not, wherein will consist the mischief? The man by supposition is guilty; if not, by the supposition there is nothing to be betray: let the law advisor say everything he has heard, every thing he can have heard from his client, the client cannot have any thing to fear from it. That will often happen that in the case supposed no such confidence will be reposed, is natural enough: the first thing the advocate or attorney will say to his client, will be–-Remember that, whatever you say to me, I shall be obliged to tell, if asked about it. What, then, will be the consequence? That a guilty person will not in general be able to derive quite so much assistance from his law advisor, in the way of concerting a false defence, as he may do at present.[74]

Mr. Bentham further observed that lawyers who assisted criminals in hiding their secrets reflected badly on the profession.[75] He correctly recognized that the privilege is an impediment to the truth and promotes a negative image of lawyers. However, to the extent that he suggested that a lawyer should use information that his client gave him and testify against the client, Mr. Bentham went too far. Circumstances exist where the confidentiality principle should not prohibit a lawyer from revealing confidential information, particularly where the need to disclose outweighs the need to keep the information confidential.

The most obvious response to Mr. Bentham's criticism of the privilege is that a lawyer will not fully and frankly discuss matters with his client unless the attorney-client privilege protects the discussion from disclosure.[76] However, that response is only valid if one agrees that the client would be reluctant to share information without the existence of the confidentiality principle—an assumption that lacks proof.[77] Professor Charles Wolfram raised a valid concern with Mr. Bentham's criticism of the privilege. Professor Wolfram distinguished between “three types of accused persons: the plainly guilty, the plainly innocent, and the innocent who are the victims of suspicious circumstances.”[78] He noted that “[t]hose defenders of the privilege do not argue against Mr. Bentham's utilitarian frame of argument; they respond in kind that the harm from the concealment of truth caused by the privilege is more than offset by the good of assisting the innocent victim of suspicious circumstances.”[79] He further asserted that in a society full of racial, religious, and nationality prejudices, “victims of suspicious circumstances” need (1) the loyalty of their attorneys and (2) a legal system that assures them a competent and fair treatment.[80] In order to assure that protection, however, the courts do not have to assure absolute confidentiality between an attorney and a client.

Although some flaws in Mr. Bentham's attack on the confidentiality principles exist, he did raise a valid concern regarding the confidentiality principle's impediment to the truth. Furthermore, he accurately stated that a lawyer's role in protecting a guilty client reflects badly upon the legal profession.[81]

Mr. Frankel began his critique with an attack on the adversarial system. He stated “that the American version of the adversary process places too low a value on truth telling; that we have allowed ourselves too often to sacrifice truth to other values that are inferior, or even illusory.”[82] Mr. Frankel correctly defined the lawyer's role in the adversarial system. He asserted that whether “[a]cidly stigmatize[d] as ‘hired guns,' or extolled as loyal champions, the lawyer is classically seen in our system as the client's zealous [advocate and] against hostile parties or a whole hostile state.”[83] Mr. Frankel noted that the most effective tool that the lawyer possesses to protect his client's interests is the “lawyer's obligation of confidentiality and the attorney-client privilege.”[84] He stated:

It will be seen without surprise that a privilege fashioned by lawyers has substantial benefits for lawyers. The point, already made, bears clearer statement: the privilege makes it easier to practice law with relative comfort and dispatch. It is difficult enough to extract information from a client in the best of circumstance; a wary and mistrustful client would be unmanageable.

For these benefits, to attorney and client and the public interest in effective legal service, there is, as for everything, a price. The effect of every evidentiary privilege, every grant in the law of a right to withhold information, is an added barrier to the search for truth. The lawyer is authorized and required by the privilege to cover up what may be evil and needed facts. The interests injured by the cover-up may be precious ones.[85]

Like Mr. Bentham, Mr. Frankel attacked a principle that interferes with the access to truth and benefits the lawyer. The inherent problems in the confidentiality principle that both Mr. Bentham and Mr. Frankel addressed should cause courts and bar associations to revise the circumstances under which a lawyer may disclose confidential information.

B. Inherent Contradictions in the Application of the Confidentiality Principle

Commentators often take a cynical view of the ethical rules that govern lawyers.[86] The confidentiality principle is an example of an ethical rule that provides an easy target for attack.[87] There are many reasons to attack the confidentiality principle. The most obvious reason is that it impedes access to the truth.[88] Proponents of the confidentiality principle concede that adherence to this principle sacrifices access to the truth to assure effective and frank communication between the attorney and the client.[89] Those who argue that the confidentiality rules in their present form are needed to assure full and frank communications between attorneys and clients are wrong. First, there is no support for the belief that, without confidentiality rules, clients would be reluctant to share information with their attorneys.[90] Second, the lawyer's self-defense and self-interest exception is inconsistent with the need for full and frank communications. Proponents of the confidentiality principle cannot effectively argue that the principle is needed to assure effective communication, yet still allow for an exception when the attorney's interest is at issue. Third, the notion that a lawyer places a premium on assuring that he has frank and candid confidential conversations with clients to facilitate effective representation is a fallacy. To the contrary, lawyers frequently do not want to know certain information about their clients because they do not want to “know” for purposes of Model Rule 3.3 whether the client is being truthful.[91]

Scholars have appropriately referred to the lawyers' self-defense and self-interest exception to the confidentiality principle as “scandalously self-serving.”[92] In a profession that the public views with cynicism, the self-defense and self-interest exception leaves the legal community looking foolish.[93] The exception developed long after the establishment of the confidentiality principle. It appeared in 1851 and endured through the enactment of the 1969 Model Code and the 1983 Model Rules.[94] The exception applies in two types of cases. The first is in a defensive posture, when a lawyer defends a legal malpractice suit or claim for ineffective assistance of counsel.[95] The rationale for the exception is that the client has waived “the privilege by voluntarily placing the contents of privileged communications into issue.”[96] The second instance is in an offensive posture, when a lawyer pursues a claim against a client to recover fees.[97] Professor Wolfram cited three reasons which have been offered to support the exception: (1) “lawyers should be entitled to use privileged information to protect their economic interests”; (2) between a lawyer and a client “there never was any confidentiality, [because] disclosure in litigation between them must have been contemplated”; and (3) “fairness should prevent a client from employing the privilege to the lawyer's disadvantage.”[98] However, Professor Wolfram correctly stated that “[t]he plain fact is that the lawyer's public testimony to recover a contested fee chills client disclosure just as much as any other public divulgence of their private conversations. If the testimony is justifiable, it must be for some reason peculiar to fee suits, although none is apparent.”[99]

The exception extends to disputes between a lawyer and a third party where the lawyer's client is not involved in the dispute. Both the Model Code and the Model Rules allowed a lawyer to disclose confidential information to defend against a third party's charges of improper lawyer conduct.[100]

Thus, lawyers are willing to maintain the confidentiality of information, even if they know that protection of the confidentiality may cause an injustice to occur, but are willing to waive the confidentiality in order to protect their personal interests.[101] Professor Daniel Fischel appropriately noted that “[c]onfidentiality means everything in legal ethics unless lawyers lose money, in which case it means nothing.”[102] The application of the confidentiality rule suppresses information that could lead to a just result if admitted.[103]

Moreover, there is a fallacy in the idea that lawyers place a premium on assuring that they have frank and candid confidential conversations with their clients in order to effectively represent them. When confronted with the mandate that lawyers be candid with the courts in which they appear, many lawyers will purposefully avoid questioning their clients about certain facts to avoid knowing if their clients have committed perjury. Model Rule 3.3, entitled “Candor Toward the Tribunal,” provides:

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.[104]

Because a lawyer would be prohibited from submitting information the lawyer knows to be false, lawyers often refrain from questioning clients about certain facts.[105] More importantly, the restraint causes a lawyer to not try to assure a full and frank conversation between himself and his client.

Consider the following circumstances: Christopher Stokes represents Kenneth Bell in a criminal child abuse case. Two years earlier, Bell's seven-year-old child was taken away from him in a civil neglect hearing. Bell admitted during his testimony at the civil neglect hearing that he used force in disciplining his son. Bell further admitted that his son required medical attention as a result. Because the civil neglect hearing was closed to the public, the local prosecutor lacked access to Bell's testimony. However, Stokes had access to the taped testimony. Stokes did not listen to the tape because he feared that the tape contained information incriminating his client. During the criminal trial, Bell testified that he never used force on his child and that on one occasion he threw water in his son's face to calm him. Bell further testified during the criminal trial that his son never needed medical attention because of force that he used against him.[106]

Many lawyers would not listen to the tape, nor would they question Bell about the extent of the force used upon the child, because any knowledge on the part of the lawyer would affect the lawyer's ability to place Bell on the stand.[107] If the lawyer were to listen to the tape and hear Bell admit to excessively beating his child or to question Bell to the extent that he admits to excessively beating his child, the lawyer would not be allowed to put Bell on the stand for him to testify otherwise.[108] Although it is clear that a lawyer is not obligated to put on the stand a client whom the lawyer knows will commit perjury,[109] it is equally clear that the disclosure obligation of Model Rule 3.3 is “strictly limited” to the case where “the lawyer knows that the client has committed perjury . . . . The lawyer's suspicions are not enough.”[110]

Lawyers often appear hypocritical when they argue that the confidentiality principle is important for candidness because the principle's exceptions often impair the lawyers' ability to engage in candid conversations with their clients. Clearly, lawyers can effectively represent their clients with a less rigid application of the confidentiality principle. Courts and bar associations should revise the confidentiality principle to allow lawyers to reveal confidential information when a strong societal need for the information exists.

The present interpretation of the confidentiality principle and its application by lawyers is another example of “loophole lawyering.” “‘Loophole lawyering' occurs when a lawyer is less concerned with applying the whole law than with finding a way to accomplish the goals of the client by exploiting a perceived ambiguity in the language of the rule or statute.”[111] The ethical rules should be revised to eliminate the lawyer's ability to manipulate the rules to support the client's need, thus promoting professional responsibility. The development of the professional rules features a tainted history, and courts and bar associations should therefore carefully critique the rules, including the confidentiality principle.[112]

C. Application of the Confidentiality Principle to Lawyers Compared with Other Professions

Lawyers are not the only professionals to argue that in order to hold candid and frank conversations with their clients the clients need to know that the information will be kept in confidence. Client confidentiality privileges exist in other professions such as accounting, medicine, psychology, and the clergy.[113] In these professions, the courts and the legislators have required the client confidentiality privileges to yield when public policy dictates. For example, the Supreme Court, recognizing the need to eliminate invidious discrimination in employment, refused to recognize the privilege of “academic freedom” and required a university to disclose confidential documents to the Equal Employment Opportunity Commission (“EEOC”).[114]The courts and the legislatures have not, however, allowed the attorney-client privilege to give way, even when compelling public policy reasons dictate otherwise.[115]

Accountants would also assert that a need exists for the information that they receive from a client to be kept confidential. The purpose of the accountant-client privilege has been stated in different ways, including: (1) to encourage free and open communications between the accountant and the client;[116] “to insure an atmosphere wherein the client will transmit all relevant information to the accountant without fear of . . . disclosure[,]” thereby enabling the accountant to adequately perform his services;[117] and (3) “to protect from disclosure the substance of information conveyed by the client to the accountant.”[118]

Accountant-client privilege allows for more exceptions than the attorney-client privilege does. A common exception exists when the accountant prepares tax documents for a client. Many courts have held that no privilege exists in the reporting of income taxes and have therefore forced accountants to turn over records when they suspect tax fraud, evasion, or underestimation.[119] Courts have also held that the accountant-client privilege does not exist in bankruptcy or criminal cases.[120]

The origins and the application of the accountant-client privilege are different from the origins and application of the attorney-client privilege. The accountant-client privilege is purely statutory and did not exist at common law.[121] One reason advanced for the nonexistence of the accountant-client privilege at common law is that “activities of the accounting profession were very limited” in the 17th and 18th centuries, and “when the common law first recognized most of the present-day privileges,” no accountant-client privilege existed.[122] Thus, because the accountant-client privilege is purely statutory, it must be narrowly construed and not given any broader scope than appears on its face.[123] Consequently, courts apply a much stricter interpretation of the accountant-client privilege than of the attorney-client privilege. Today, approximately one-third of the states have enacted statutes protecting a client's communication to his accountant.[124]

Another difference between the accountant-client and the attorney-client privileges exists with respect to the subsequent hiring of a professional in the same field. If an accountant assists a client who had employed another accountant, the former accountant must release the client's information to the subsequent accountant without regard to the client's permission. With respect to attorneys, the attorney-client privilege perpetuates when the client seeks the help of another attorney and can only be waived with the client's permission.[125]

Physicians also argue the need for confidentiality with their patients. “The purpose of the [physician-patient] privilege is to protect patient[s] by encouraging full and confidential disclosure to [their] physician[s] of all information, however embarrassing, which might aid [their] physician[s] in diagnosis and treatment.”[126] No physician-patient privilege exists under federal law.[127] The rules and exceptions governing the physician-patient privilege, like those governing the accountant-client privilege, are wholly statutory and vary widely from state to state.[128] For example, in North Carolina the privilege for communications between a physician and a patient is “qualified, rather than . . . absolute, . . . in that [a] judge has [the] discretion to ‘compel . . . disclosure, if in his opinion [disclosure] is necessary [for the] proper administration of justice.'”[129] In some jurisdictions, statutes render the physician-patient privilege and the psychotherapist-client privilege inapplicable in child abuse cases.[130] In other jurisdictions, courts may choose to override the privilege if doing so is in the state's best interest or for the child in a child abuse or custody case, even if the statute does not address these exceptions.[131] With respect to the judge's discretion or to the child abuse cases, no such exceptions to the attorney-client privilege exist.

Like physicians, psychotherapists assert the need to keep their patient's information in confidence. The Supreme Court has held that “confidential communications between a licensed psychotherapist and her patients in the course of diagnosis and treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence.”[132] The Court stated that the “psychotherapist . . . and patient[] share a unique relationship, in which the ability to communicate freely without the fear of public disclosure is the key to successful treatment.”[133] In some form, each of the 50 states has adopted the psychotherapist-patient privilege.[134] They have taken different approaches when recognizing the privilege. The states' psychotherapist-patient privilege falls into four categories.[135] There are “[13] states [that] treat the [psychotherapist-patient] privilege as identical to the attorney-client privilege”;[136] “[22] states revoke the privilege in trials involving specific crimes, most commonly child abuse and homicide”;[137] “[10] states terminate the privilege if the patient poses an imminent threat to an identifiable third person”;[138] and “[t]hree states allow [] court[s] to weigh the value of the evidence obtained against the privacy of the patient on a case-by-case basis.”[139] The Seventh Circuit Court of Appeals, in Jaffee v. Redmond,[140] held that the privilege should not apply if “in the interests of justice, the evidentiary need for the disclosure of the contents of a patient's counseling sessions outweighs that patient's privacy interests.”[141]

Finally, clergy also assert that a need exists to keep the information that they receive from the parishioners confidential. Although this privilege did not exist at common law, it has long been a recognized principle of American law and every state has recognized some form of this privilege.[142] This privilege exists because of “the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.”[143] For this privilege to apply, “the statements [must have been] made in the usual course of the discipline; . . . the person claiming the privilege [must be] allowed by the statute to claim it; . . . the communication [must have been] secret; and . . . the statements [must have been] penitential in character and made by the penitent.”[144]

In most jurisdictions in which the clergy-penitent privilege applies, statutes expressly prohibit the clergy “from disclosing the contents of a confidential communication ‘without the consent of the person making the communications.'”[145] Most statutes also require that the communication be made while the penitent is seeking spiritual guidance rather than merely conversing with the clergy.[146] Thus, “the privilege is not absolute. Some states have required the privilege to be abrogated in certain circumstances, including cases of child abuse.”[147] Virginia omits the prohibition against disclosing confidential information: a member of the clergy may disclose any information entrusted to the clergy and “leave . . . it to his conscience to decide when disclosure is appropriate.”[148]

In summation, the client confidentiality privileges that involve professionals such as accountants, physicians, psychotherapists, and clergy serve an important purpose. However, when a society has exhibited a compelling need for the information, the courts and the legislators have been willing to balance that need against the need to preserve confidentiality. In appropriate situations, these courts and legislators have required disclosure. As previously indicated, their willingness to require disclosure by applying this balancing test has not been extended to the attorney-client privilege. Members of the legal profession are not in a position to argue that the need for confidential information is greater in the attorney-client relationship than in these other relationships. Consequently courts and bar associations should similarly balance the need to keep information confidential against the need for disclosure.

Although the privileges in the other professions are statutory (except for the clergy-penitent privilege, which, like the attorney-client privilege, finds its roots in the common law), the difference in origin should not dictate whether the attorney-client privilege should yield to a compelling need for disclosure. In determining whether the attorney-client privilege should give way, courts and bar associations should look at the rationale for the privilege and determine whether circumstances exist where the privilege can yield without substantially interfering with the privilege's purpose. After a careful review of the rationale for the privilege, courts and bar associations should see that they can maintain integrity of the attorney-client privilege even if the privilege yields in certain situations.

IV. Application of the Confidentiality Principle Where Society Needs the Confidential Information

The confidentiality principle clearly impedes courts in searching for the truth. The possibility of a situation arising where the need to assure that the attorney is able to hold an honest conversation with his client does not justify such an impediment. The Supreme Court has applied the confidentiality principle to avail a societal need for the confidential information but has refused to find an exception.[149] At the time of this publication, a case is currently before the North Carolina Supreme Court in which the court must determine whether the confidentiality principle should give way to the State's need for information as part of a criminal investigation.

A. Swidler & Berlin v. United States[150]

In Swidler & Berlin v. United States, the Supreme Court was presented with the opportunity to address whether the attorney-client privilege survived a client's death.[151] Although circumstances exist where the privilege must yield, such as the self-interest exception for attorneys, the Supreme Court concluded that the privilege does survive the client's death, even when providing the information would further a criminal investigation.[152] The Supreme Court stated that “[t]he attorney-client privilege is one of the oldest recognized privileges for confidential communications” and that “[t]he privilege is intended to encourage ‘full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.'”[153] The Supreme Court failed to address the hypocrisy of simultaneously maintaining the self-interest exception and asserting the privilege's importance in assuring full and frank communications. The Court opined that existing exceptions to the privilege, such as the crime-fraud and testamentary exceptions, are consistent with the privilege's purposes, “while a posthumous exception in criminal cases appears at odds with the goals of encouraging full and frank communication and of protecting the client's interests.”[154] Unfortunately, the Supreme Court provided little support for this conclusion, although the Court did concede that limited empirical evidence existed on the extent that a posthumous exception would discourage full and frank communication.[155] Nevertheless, the Supreme Court was willing to maintain the privilege based on long-standing tradition.

In her dissent in Swidler & Berlin, Justice O'Connor echoed the sentiments of the Circuit Court of Appeals for the District of Columbia when she raised valid reasons for recognizing an exception to the attorney-client privilege.[156] In evaluating whether the privilege should yield under the circumstances of Swidler, Justice O'Conner argued that “the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client's interest in preserving confidences.”[157] Moreover, Justice O'Connor recognized that attorneys cannot argue the importance of the attorney-client privilege to assure full and frank communications and at the same time argue the importance of exceptions for “crime-fraud [or] for claims relating to attorney competence or compensation.”[158] She argued that these exceptions “reflect the understanding that, in certain circumstances, the privilege ceases to operate as a safeguard on ‘the proper functioning of our adversary system.'”[159] Although Justice O'Connor did not go so far as to say that allowing the self-serving exception while refusing an exception as part of a criminal investigation when the client is deceased is hypocritical, her arguments demonstrated this hypocrisy. The court of appeals similarly opined “that the risk of posthumous revelation, when confined to the criminal context, would have little to no chilling effect on client communication, but that the costs of protecting communications after the death were high.”[160] Thus, the court of appeals “concluded that the privilege was not absolute in [the criminal context where the client is deceased], and that instead, a balancing test should apply.”[161]

B. Matter Pending Before North Carolina Supreme Court

The Supreme Court of North Carolina considered the question of whether a trial court properly ordered an attorney to reveal a deceased client's confidential communications regarding any criminal conduct surrounding a suspected homicide.[162] The trial court concluded that a reasonable basis existed to believe that the deceased client had provided his attorney with relevant information regarding the death.[163] Moreover, the trial court found “[t]hat the information sought is highly important, material and relevant to an ongoing homicide investigation” and “[t]hat this specific information does not appear to be available from any other source.[164] The trial court boldly concluded “that the State's and public's interest in determining the identity of the person or persons responsible for the death . . . outweigh the public interest in protecting the attorney-client privilege,” particularly where the estate of the deceased has waived the privilege and specifically requested that the information be disclosed by the attorney.[165]

The facts in this case represent the type of case where the public interest in the information sought outweighs the interests that the rules of confidentiality protect.[166]

V. Confidentiality Rule Should Give Way to a Compelling Need for the Information, unless protected by the Fifth Amendment

Courts and bar associations should revise the confidentiality principle and allow lawyers to reveal confidential information when society has exhibited a strong need for the information. Specifically, the confidentiality principle should not provide greater protection than the Fifth Amendment right against self-incrimination.

The Fifth Amendment “protects a person . . . against being incriminated by his own compelled testimonial communications.”[167] “To receive Fifth Amendment protection, a person's statement or act must (1) be compelled; (2) be testimonial; and (3) incriminate the person in a criminal proceeding.”[168] A client's need to keep information confidential is greatest when the information could incriminate the client in a criminal proceeding.[169] Except for this great need by the client to keep incriminating information secret, however, another person's compelling need may outweigh the client's need to keep confidential information he has shared with his attorney. In those circumstances where the Fifth Amendment does not protect the information, a court should be allowed to balance the client's need to keep the information confidential against a person's compelling need for the information.

The compelling need must be demonstrated by some strong societal reason, such as preventing the conviction of an innocent person. In addition, a person could demonstrate a compelling need if the information is required to locate murder victims in order to give them a proper burial.[170] In circumstances where the client is dead, such as in Swidler[171] and In re the Investigation of the Death of Eric DeWayne Miller,[172] no Fifth Amendment protection exists, and the people needing the information can demonstrate a compelling need for the information. Accordingly, a court should be allowed to compel the attorney to reveal the confidential information shared by the client. In circumstances where the client has been granted immunity and therefore cannot be subject to a criminal conviction but refuses to reveal the information, the court should be allowed to compel the attorney to reveal the information if a person can demonstrate a compelling need. Moreover, if the information is not incriminating but is only embarrassing to the client, and the client refuses to reveal the information, the court should be allowed to compel the attorney to reveal the information if a person can demonstrate a compelling need.

Courts are fully capable of conducting a balancing test where competing interests are at issue. The balancing test adopted should resemble the balancing test established in Roviaro v. United States.[173] In Roviaro, the Supreme Court recognized the government's privilege to withhold the identity of a confidential informant.[174] The Court reasoned that “[t]he purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.”[175] However, the Court also recognized the defendant's right to prepare his case, stating that “[t]he problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense.”[176] Courts balancing these interests should consider “the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.”[177] The Court held that “[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.”[178]

In balancing the client's need to keep the information confidential against a compelling need for the information, courts should consider “the fundamental requirements of fairness.”[179] Assuming, as most courts and lawyers do, that the confidentiality principle is an important privilege for clients, circumstances still exist where that privilege must yield. When the information sought does not affect the client's Fifth Amendment right and the person seeking the information can establish a compelling need, the privilege should give way. In that situation, courts should apply the Roviaro balancing test in determining whether to require an attorney to disclose information when a person seeking the information is charged with a crime. In applying the Roviaro test, courts should consider “the crime charged, the possible defenses, the possible significance of the [attorney's] testimony, and other relevant factors.”[180]

Courts should not limit the disclosure of confidential information by a client to situations where a person is charged with a crime; courts should also require disclosure when a government agency establishes a compelling need as part of its investigation. Furthermore, courts should require disclosure to determine the location of victims because our society has recognized the importance of allowing people to bury their loved ones.[181] Courts should also follow Roviaro in inspecting the confidential information in camera.[182]

Revisiting the hypothetical involving Lena Lawyer, under the present interpretation of the confidentiality principle, certain circumstances exist which would allow Lena Lawyer to reveal confidential information that she received from Carrie Client, and certain circumstances exist which would prohibit her from disclosing the confidential information. The difference in the circumstances that lead to different results is not explained by any important societal need, but they can only be explained by a rule that is self-serving to lawyers and not to society as a whole. To resolve a fee dispute, Lena Lawyer may “reveal [confidential information] to the extent the lawyer reasonably believes necessary.”[183] Conversely, Lena Lawyer may not reveal that Carrie Client told her that she disposed of the body on her grandmother's farm, even though such disclosure would not affect Carrie and would allow the victim's family to have a proper burial.[184] Further, Lena Lawyer may not disclose to the police the involvement of Arnold Accomplice, which would lead to the appropriate conviction of a criminal.[185] Finally, Lena Lawyer may not disclose any information about Carrie Client's involvement that could lead to the resolution of the manner in which Victor Victim died.[186]

These differing circumstances that allow a lawyer to disclose information should be eliminated. If the lawyer can reveal confidential information to protect the lawyer's financial interest, then the lawyer should be able to reveal confidential information where an important societal need exists. Some proponents of the confidentiality principle, in its present interpretation, may agree that it is self-serving to allow lawyers to reveal confidential information to protect the lawyers' self-interest. Those proponents may nonetheless suggest that the courts and bar associations should fix the inequity by abolishing the self-serving exception and not by changing the interpretation of the confidentiality principle. However, abolishing the self-serving exception will not fix the real issue. The real issue is that the courts have suppressed information that could lead to a just result when no legitimate need exists to suppress that information. The existence of the self-serving exception demonstrates that circumstances exist where a lawyer may reveal confidential information without hampering the lawyer's effective representation of his client.

The Author's proposed interpretation of the confidentiality principle would dictate revealing confidential information when a strong societal need exists for the information, unless disclosure implicates the client's Fifth Amendment right. Under this interpretation, Lena Lawyer would be required to reveal the location of Victor Victim's body. Although some value to keeping information confidential may exist, even after the death of the client, that value does not outweigh the societal need to properly bury Victor Victim. Because Carrie Client is dead, she no longer possesses Fifth Amendment rights. Furthermore, Lena would be required to provide information to the police about Arnold Accomplice's role in Victor Victim's death. If Lena revealed the information about Arnold Accomplice's role, Carrie's Fifth Amendment right would not be implicated, and Arnold is not entitled to request that the information be kept confidential because he is not Lena's client.

Conclusion

Privileged communications between individuals because of their relationship should be narrowly applied to serve their limited purpose. The attorney-client privilege, the accountant-client privilege, the physician-patient privilege, the psychotherapist-patient privilege, and the clergy-penitent privilege all serve legitimate purposes. However, they are also an impediment to the truth and should be narrowly applied.

While courts and legislators have been willing to find exceptions in many of these privileges, the attorney-client privilege continues to have a broad application. Courts and bar associations should revise the confidentiality principle and allow lawyers to reveal confidential information when a strong societal need exists for the information. Specifically, the confidentiality principle should not provide greater protection than the Fifth Amendment right against self-incrimination. Consequently, if a party demonstrates a compelling need for confidential information, a court should be allowed to require the lawyer to disclose that information, unless the Fifth Amendment protects its disclosure.

Attorneys continue to have a tainted image in America, and critics are skeptical of the rules that govern attorneys. The courts and the bar associations need to revisit these rules to ensure the highest integrity; a re-examination of the confidentiality principle should receive their highest priority.