Cost of Attorney-Client Confidentiality in Post 9/11 America, The

Georgetown Journal of Legal Ethics, The, Summer 2007 by Popp, Jason

INTRODUCTION

The tragic attacks of September 11, 2001 served notice to the United States of the reality and enduring detrimental effects of terrorist attacks. Since then, Congress and the Bush Administration have taken measures to protect the country from future terrorist attacks, often authorizing laws that encroach upon civil liberties.1 By acquiescing to these changes, American citizens, through their elected representatives, have effectively acknowledged the importance of protecting our country from terrorist attack.

The American Bar Association ("ABA") has made no such adjustments to The Model Rules of Professional Conduct ("Model Rules") to acknowledge the threat of terrorism.2 Specifically, it has not amended Model Rule 1.6-which defines the lawyer's duty of client confidentiality-to account for potential terrorism threats.3 Though the ABA is not charged with considering for or providing protections against terrorism,4 this Note argues that it should account for the threat of terrorism by amending the Model Rules.

Currently, lawyers are under no affirmative obligation to reveal confidential communications that could protect third parties from physical harm.5 Not only is there no requirement for a lawyer to reveal confidential information, but there is an economic disincentive to do so. The duty of confidentiality is an essential part of the American legal system, but even our most sacred obligations must evolve to meet societal conditions. To that end, this Note will suggest that the ABA revise the Model Rules to reflect the threats this country faces in the post 9/11 world. Specifically, this Note argues that the ABA amend Model Rule 1.6 by enacting measures that mandate disclosure in certain situations that involve future acts of terrorism.

Part I of this Note delineates the history of the duty of confidentiality and its legal basis. It discusses the difference between the duty of confidentiality and the attorney-client privilege and details the history and meaning of Model Rule 1.6. Part I explains the problems posed by applying the current version of Model Rule 1.6 to situations where an attorney has knowledge of terrorist activity. It discusses the difficult situation of a lawyer who learns of information regarding a future terrorist attack and why a different standard of confidentiality should apply in this situation. Part III proposes an amended Rule 1.6 which would account for threats posed by terrorism. The amended rule would require that a lawyer who learns information regarding a future terrorist act disclose it to governmental authorities.

I. THE DUTY OF CONFIDENTIALITY: MODEL RULE 1.6

A. CONFIDENTIALITY DISTINGUISHED FROM THE ATTORNEY-CLIENT PRIVILEGE

To understand the duty of confidentiality, it is necessary to distinguish it from the attorney-client privilege. The attorney-client privilege is based in the law of evidence and is the oldest common law privilege.6 The duty of confidentiality, on the other hand, is established in professional ethics7 and is comparatively new.8 Furthermore, the contours of the attorney-client privilege have been informed largely by the United States Supreme Court, while the duty of confidentiality has not.9 From a substantive standpoint, the privilege has a far narrower scope than the duty of confidentiality. The privilege only protects confidential communications between a lawyer and client that relate to the purpose of the legal representation.10 Effectively, it is "an evidentiary privilege that applies only to compelled testimony."11 In contrast, the duty of confidentiality applies to any information relating to the representation.12 The duty of confidentiality is essentially a gap-filler, attaching to any situation in the scope of legal representation that the privilege does not.13

Though they are functionally different, the attorney-client privilege and duty of confidentiality have similar underlying policies.14 Both encourage clients to communicate freely and openly to attorneys so that attorneys are fully informed and best suited to represent these clients.15 Candid communication between attorney and client is vital to effective representation, and confidentiality is essential to the adversarial system.16 The importance of confidentiality is well established, and this Note does not intend to cast doubt on its value. Rather, this Note suggests that in certain situations, it is more important to breach confidentiality (independent of the attorney-client privilege) than to maintain it.

At this point, it is necessary to acknowledge the importance of, and the justifications for, confidentiality or, rather, against compelled attorney disclosure of client information. The Sixth Amendment to the Constitution grants the right to effective assistance of counsel in criminal cases.17 It could be argued that mandatory disclosure of client information in any circumstance would chill attorney-client communication, and this chilling impact would necessarily dilute the Sixth Amendment.18 The other commonly invoked tenant supporting strict lawyer-client confidentiality is the philosophy of utilitarianism. Those opposed to mandatory disclosure argue that utilitarianism requires strict confidentiality, because when a client has full trust in confidentiality, he will disclose all necessary information to the lawyer, and in return, the lawyer will provide the best-suited advice.19