Journal of the Legal Profession
The purpose of my essay Playing Chicken: An Instant History of the Battle over Exceptions to Client Confidentiality, is to offer a pointillist history of the recent battles between the ABA and the federal government concerning 1) when lawyers may or must disclose client confidences, and 2) claims that the federal government is attacking the attorney-client privilege. In doing so, I hope to explain how this battle is representative of the current drift in the American legal profession.
After the Introduction, the essay unfolds as follows: Section II traces the ABA’s often schizophrenic understanding of the duty of confidentiality and exceptions to that duty from the 1908 Canons of Ethics to the adoption by the ABA of the 1969 Code of Professional Responsibility, and the re-conceptualization of that duty found in the adoption in 1983 of the Model Rules of Professional Conduct. The ABA’s expansion of the duty of lawyers to keep confidences, even confidences that concerning ongoing fraud by the client, occurred after the discussion of the attorney-client privilege and its exceptions proposed by the drafters of the Federal Rules of Evidence between 1969 and 1973. The consonance between the 1969 Code and the 1975 Federal Rules of Evidence concerning the limits of the duty of confidentiality was shredded in the reaction to the ABA’s Discussion Draft of the Model Rules in January 1980. The drafts and debates concerning what became Model Rule 1.6 offer an initial demonstration of “playing chicken” by assorted lawyer interest groups as well as by the ABA, as exceptions to the duty of confidentiality became more narrowed, a narrowing justified by a claim that lawyers owe a nearly unfettered duty of loyalty to clients. Section III examines why states largely rejected Model Rule 1.6 between 1983 and the late 1990s and describes several corporate scandals from the late 1980s involving lawyer (mis)conduct. Section IV offers an instant history of the debate over when a lawyer may or must disclose client confidences beginning in 2001.
My thesis is that when an ABA Task Force offered to make the disclosure of some client confidences mandatory, it did so not for reasons of principle, but for reasons of power. After succeeding in limiting the effect of SEC regulation of lawyer conduct in the aftermath of Sarbanes-Oxley, the ABA began in late 2004 a new effort, engaging in a concerted attack on the government’s alleged “erosion” of the attorney-client privilege. This concerted attack by the ABA, I assert, had little to do with presenting evidence that the government was eroding the attorney-client privilege, and everything to do with protecting the interests of their institutional clients and themselves. Section V offers a brief conclusion. I have also included an Appendix offering a timeline of the events discussed in this paper.
Michael S. Ariens, “Playing Chicken": An Instant History of the Battle over Exceptions to Client Confidentiality, 33 J. Legal Prof. 239 (2008-2009).