indiscreet role of lawyer discretion in confidentiality rules, The

I. INTRODUCTION

Few areas of law are more contentious than legal ethics, and few areas of legal ethics elicit more controversy than client confidentiality. Unlike most legal disciplines, the details of which are left to academics and judges to sort out, the details of confidentiality engender among lawyers of all stripes continuous and often heated debate.1 The fuel for that debate arises primarily from one source: the widely and strongly held belief that ethics is an area in which all lawyers, and indeed all human beings, are expert.2

What protection should be afforded client confidences is a hotly disputed area in legal ethics that has resisted all attempts to forge consensus.5 As is often the case in legal ethics, most of the difficulties surrounding confidentiality arise from an improper understanding of the issues involved. In the first Section of this Article, I will set forth the root of that improper understanding - a failure to appreciate the difference between the rules that govern the legal profession and the moral codes that guide individuals in their day-to-day lives. Once that difference is clarified, I will explain why legal ethical rules are distinct from the "rules" of personal morality. With that distinction firmly in mind, I will turn my attention to the three current approaches to the area of confidentiality, all of which provide a significant role for lawyer discretion in resolving ethical quandaries. Finally, I will explain why such grants of discretion are ill-advised.

II. A CRITICAL VIEW OF THE STANDARD APPROACH To LEGAL ETHICS

When discussing proper behavior in a given situation, it is natural to resort to language of personal morality. After all, morality, however each individual defines that term, is the guiding force of human activity in general. A person strives, if nothing else, to be a good, moral person, and no higher compliment can be paid to someone than "he or she did the right thing." Therefore, it should be no surprise that we find people, within and without the profession, assessing individual lawyers' professional actions in light of personal moral values and, as a result of that assessment, declaring those actions "good" or "bad," "moral" or "immoral."

Faced with that admittedly unpleasant scenario, most of the participants slipped immediately into the comfortable arena of common ethics in an attempt to, as one participant labeled it, "steer between the Scylla and Charybdis of professional role and personal morality."8 A participant presaged that the "vast majority [of the symposium participants would] advocate at least allowing, if not mandating, that [the defense attorney] breach her client's confidence" in spite of the professional rule's clear prohibition against doing so.9 That prediction proved correct.

For example, one commentator embarked on a "Moral Analysis" of the situation and attempted to balance the "morality" of disclosure with that of reticence.10 He concluded that the defense attorney would be "morally justified in disclosing [her client's] confidence .... In fact, [it would] be a moral imperative."10 Another contributor drew on his religious tradition to support disclosure, despite the rule prohibiting it. 12 Almost to a person, the lawyers participating in the symposium declared they would sacrifice their client's confidence to save the condemned man's life. Underlying this conclusion was the premise (implicit for some, explicit for most) that, although there is a clear professional rule requiring confidentiality, maintaining the client's confidence in the proposed scenario would be "bad" or "immoral."

It is safe to say that most lawyers would approve of the participants' approach. While we may find it initially attractive to abandon the governing rules to appease personal morality, we must take care not to embrace that approach as systemically legitimate. The tendency to apply personal moral judgments to professional actions, although easily understandable, is ultimately detrimental to the legal profession.

A. RULES OF PROFESSIONAL RESPONSIBILITY AS A NONCONSEQUENTIALIST CODE OF CONDUCT

Admittedly, the rigid nature of the rule nonconsequentialist approach makes it a difficult theory upon which to base our day-to-day morality.17 However, that does not undermine its application in the realm of professional ethics because, simply stated, professional ethics is not a code of morality.18 Morality governs a person's actions when he or she acts qua person. The legal professional code, on the other hand, governs a person's actions when he or she acts qua lawyer.19 Thus, personal morality and the professional code serve materially different purposes. The professional rules are intended to define the practice of lawyering and supply the measure of what is right or wrong within that practice. Under the rules of legal ethics, a lawyer need go no farther to justify his or her action qua lawyer than to point to the rule authorizing it.

That view of the professional rules, as the sole defining element of what is right and wrong within the practice of law, has been termed, usually derisively, as "role morality." Critics attack role morality because, they contend, it allows the lawyer to commit "immoral" acts while hiding behind the rules that govern the profession.20 According to the opponents of role morality, a lawyer is an autonomous moral being who should act in accordance with his or her personal moral code in his professional activities, even when that code conflicts with the rules governing the practice.21