Another misunderstood relation: Confidentiality and the duty to report

INTRODUCTION: THE REPORTING DUTY AND ITS PARADOXES

Unfortunately, the level of attention devoted to a legal issue does not invariably correspond to the extent to which legal decision-makers or those who translate the work of legal decision-makers come to master the issue's subtleties or successfully work through the issue's challenges. So it is with the reporting duty. For, despite all the attention heaped on the reporting duty, two conspicuous problems mar the landscape.

One such problem is that the practical, day-to-day realities of the reporting duty continue to overflow with paradox, undermining the duty's central objectives. The paradox manifests itself along three dimensions, dimensions that implicate matters of disposition, intended beneficiaries, and administration.

The dispositional dimension is that the reporting duty, fashioned originally to elicit the noble, selfless aspect of the lawyer's professional character, instead has come too often to elicit the petty and selfish in that character. Put another way, the reporting duty has evolved from a tool designed to help the community of lawyers weed out scoundrels into a weapon, as often as not unleashed out of spite, tactical tomfoolery, and sheer defensiveness.2

A second dimension of the paradox implicates the duty's intended beneficiaries. The reporting duty, grounded principally in the concern for future clients and the image of the legal profession, has come to serve these interests poorly, if at all. Rare in the state disciplinary machinery that chugs along around the nation is the misbegotten lawyer whose misdeeds would not have come to light but for the fact that some other lawyer blew the whistle in order to comply with the reporting duty and in so doing kick-started a process that in the end spared future clients harm and indignity they otherwise would not have been spared. Sparse is the evidence to support the proposition that the pervasive existence of the duty to report elevates the public perception of the profession or, correspondingly, that the public perception diminishes in those few jurisdictions that have chosen to liberate lawyers from such a duty.

These three dimensions of paradox, separately and together, go a long way toward explaining the awkward role the reporting duty continues to play in both law practice and the regulation of lawyer conduct. Each is worthy of extended treatment, and such treatment would illuminate important truths about the reporting duty, the practice of law, and the regulation of lawyers.

That treatment, alas, will not be forthcoming here. Instead, this Article will confront the other problem ranging across the landscape of the reporting duty: the fact that a central aspect of the reporting duty requirement continues to bewilder and frustrate those whom the duty is intended to regulate, those who do the regulating, and those who assess the professional performance of each. The aspect of the reporting duty engendering all this trouble is the confidentiality exception.5 In its own way, this exception has produced yet another paradox, one that needs to be exposed and discussed more urgently than those noted above. This paradox can best be deemed the interpretive paradox, and it dramatically affects the way practicing lawyers as well as those who evaluate the conduct of practicing lawyers approach the reporting duty set forth in Rule 8.3 of the American Bar Association's Model Rules of Professional Conduct.6

1. THE INTERPRETIVE ISSUE

The lawyer's duty to report the misconduct of other lawyers, like much else in the law, represents an effort to accommodate competing interests. More precisely, the duty seeks to accommodate both the profession's need to acquire information about misbehaving lawyers and the obligation of each individual lawyer to preserve the confidentiality of information relating to clients and client matters. Even a cursory look at the language and structure of the rule that captures the reporting obligation in most of the more than forty states that have adopted it drives home this point:

RULE 8.3 Reporting Professional Misconduct

(a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 ....

RULE 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to 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