erosion of privacy after September 11: A call to arms for the protection of the attorney-client relationship in the face of a national crisis, The

Georgetown Journal of Legal Ethics, The, Summer 2003 by Kerber, Marianne, Thomas, Alexis M

INTRODUCTION

The protection of attorney-client communications for criminal defendants accused of terrorism is in a state of flux. Federal regulations, passed in response to the September 11, 2001 terrorist attacks, place new and controversial guidelines upon criminal defense attorneys and their clients.1 Many argue these regulations will chill attorney-client communication,2 thus effectively breaching one of the oldest privileges in the law.3 Specifically, the USA Patriot Act and Bureau of Prisons Rule have the potential to curtail an attorney's ethical obligation to keep his client's communications private, as required by the Model Rules of Professional Conduct ("1983 Model Rules").

These new regulations, which mandate disclosure of confidential communications in specific circumstances, could compromise the sacred role of a lawyer as advocate and counselor. Previously, these communications were protected under Model Rule 1.6, which requires an attorney to keep confidential all information that may be embarrassing or harmful to the client.4 This note examines the state of the Model Rules regarding attorney-client confidentiality prior to September 11, outlines new regulations under the USA Patriot Act, and discusses potential consequences to attorney-client communication that result from these rules.

Part I will examine scholarly discourse to show that confidential communication is not only required by tradition and reason, but is also imperative to ensure effective client representation. Part II will consider the new federal regulations, comparing them with previous laws that already undermined the attorney-client relationship. Finally, Part III will discuss potential consequences of the new federal regulations.

I. THE NECESSITY OF CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION

A veil has cloaked conversations between attorneys and their clients since the sixteenth century.5 This protection, however, was first embodied as an evidentiary principle and not as a professional obligation.6 The 1983 Model Rules lagged behind the adoption of this evidentiary principle and did not recognize a specific obligation of confidentiality until the early 1900s.7 However, with the adoption of Model Rule 1.6, attorneys received specific guidance in their relationships with clients.8 The current construction of the law can be best understood with a consideration of the history governing attorney-client communications.

A. THE CANONS OF PROFESSIONAL ETHICS

The initial construction of confidentiality was recognized in the Canons of Professional Ethics ("1908 Canons")? While the ABA adopted Canons 1-32 in 1908, no canon directly addressed confidentiality.10 Instead, Canon 6 only mentioned the duty to keep confidences in the context of a conflict of interest.11 The final paragraph of Canon 6 recognized "the obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences."12 Subsequent amendments in 1928, including Canon 37, explicitly stated the duty of an attorney to keep his client's confidences.13 As understood by legal scholars, the information protected by Canon 37 was only that which was also protected by the attorney-client privilege, namely those communications that would be protected in the courtroom should also be protected outside the courtroom.14 This construction of the law, however, was often ambiguous.15 An attempt to clarify the law was made in 1969 with the adoption of the Model Code of Professional Responsibility ("1980 Model Code"), which replaced the 1908 Canons.16

B. THE MODEL CODE OF PROFESSIONAL RESPONSIBILITY

The Model Code adopted Rule (DR) 4-101, which stated that not only were the clients' "confidences" to be maintained but also the clients' "secrets."17 While a "confidence" is limited to information protected by attorney-client privilege, "secrets" are those communications made during the relationship that the client wishes to keep confidential or communications for which disclosure may be detrimental or embarrassing.18 This expansion of confidential information tried to induce clients to come forward with information that they might otherwise hesitate to offer.19 The final expansion of this rule was promulgated in the 1983 Model Rules.20

C. THE 1983 MODEL RULES

Model Rule 1.6 states:

(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 reasonable 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 lawyers 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.21