Plato’s Allegory of the Cave explores the tension between the imagined reality that we think is “real” (shadows) versus the reality that is the “truth” (outside the cave).
— Mayo Oshin, from Plato’s Allegory of the Cave: Life Lessons on How to Think for Yourself
The ethical rule of confidentiality is expressed in Model Rule 1.6, Confidentiality of Information, in the American Bar Association (ABA) Model Rules of Professional Conduct. Rule 1.6 covers a broad expanse of communications between client and attorney that cannot be disclosed by the attorney unless such disclosure falls under one of seven limited exceptions provided in the rule. These exceptions were introduced to rectify troubling circumstances in which strident compliance with the rule of confidentiality prevented the avoidance of harm to others or even to the clients themselves.Model Rule 1.6 itself provides the basis for most state confidentiality rules, particularly the common law developed over the years concerning the evidentiary attorney-client privilege. However, commentators have remarked that Model Rule 1.6 also creates tension between the policy concerns underlying confidentiality and the policy concerns underlying the public good in optimizing the court’s truth-seeking function to ensure that fundamental justice can be maximized in resolving legal disputes.This tension has led some commentators to question whether the “bar should defer to the courts in establishing disclosure standards for client information on a case by case basis under the evidentiary attorney-client privilege.” Some commentators would simply eliminate Model Rule 1.6 entirely because “confidentiality rules for lawyers are destructive; the societal cost for these rules outweigh the purported benefits, which are largely illusory.” Even our country’s highest Court has noted the societal costs imposed by confidentiality rules for lawyers. Because of this obvious societal harm, courts have applied the dictum that the attorney-client privilege should be construed strictly and narrowly to achieve its purpose.The New York Court of Appeals has noted the general tension created by these competing policy considerations. Importantly, although neither the New York attorney-client privilege statute, Civil Practice Law and Rules (CPLR) § 4503, nor the New York bar’s confidentiality rule mirror Model Rule 1.6, the courts in New York, by applying a fact-specific analysis, balance the need for disclosure against the importance of confidentiality on a case-by-case basis. Similarly, Florida has given the evidentiary attorney-client privilege a strict and narrow application. However, as opposed to New York, Florida is one of 12 states that goes further than the ABA’s current permissive stance on disclosure for the purpose of preventing death, serious bodily injury, or the commission of a crime and actually requires disclosure in these circumstances; it also is one of five states that mandates disclosure in cases in which the ABA Model Rule would merely permit it in order to prevent noncriminal fraud.Given the broad societal costs imposed by confidentiality rules and the common-law recognition of the adverse effect of the evidentiary attorney-client privilege on the court’s truth-seeking function, some scholars have questioned the policy concerns underlying both and have concluded that confidentiality rules are nothing more than a vestige of medieval class preservation, which should be abolished because the behavioral assumptions and risks that ground ABA Model Rule 1.6 are more appropriately dealt with in Model Rules 1.7, 1.8, 1.9, 1.10, and 1.11. Moreover, the evidentiary rules of attorney-client privilege and work product doctrines, hearsay rules, regulatory restraints, and other procedural and evidentiary safeguards already make confidentiality rules superfluous. Finally, it has been further suggested that the evidentiary attorney-client privilege, being a product of confidentiality rules, also should be more narrowly construed so that the primary function of the court (i.e., truth-seeking and fact-finding) can rid itself of information asymmetry that the confidentiality rules create.The purpose of this article is to briefly review the policy concerns of both confidentiality and the evidentiary attorney-client privilege to determine whether Model Rule 1.6 and the evidentiary attorney-client privilege can exist without each other. The article explores (a) whether the societal harm inflicted by confidentiality rules exacts mistrust in our legal institutions, thus actually undermining the observance of the law and the administration of justice, and (b) whether the evidentiary attorney-client privilege should be further narrowed in scope to facilitate the court’s truth-seeking function, thus arguably optimizing compliance with the rule of law and the administration of justice. This article presumes that the societal costs of a strict rule of confidentiality or an expanded application of the attorney-client privilege outweigh each’s social, political, and economic benefits and that broad application of the evidentiary attorney-client privilege not only obstructs fundamental fairness in the administration of justice but also enables malfeasance in government.In recognition that the attorney-client privilege should have a more narrow scope for government clients, Restatement (Third) of the Law Governing Lawyers § 74 qualifies the government lawyer’s privilege to the extent required by “applicable law.” It further notes that “a legislative determination of a need for less confidentiality, for example in a statute that limits attorney client confidentiality in areas outside of litigation, would prevail over the common-law rule stated in this Section.” Not surprisingly, “most legislation, explicitly or through interpretation by the courts and agencies, recognizes an exception to the disclosure principle where government lawyers are involved,” thus illustrating the deteriorating effect the rule of confidentiality has on open government and accountability for government officials’ misconduct.
II. Historical Development of ABA Model Rule 1.6 — Confidentiality of Information
A. Medieval Confidentiality Duties and the Attorney-Client Privilege
Confidentiality duties and the attorney-client privilege are not new to the bar; they can be traced back to medieval times. Although both doctrines have their genesis in the medieval era, confidentiality, as a rule of professional ethics, has only recently gained prominence as an ethical duty. In fact, the evidentiary attorney-client privilege, as a common-law doctrine, sufficiently provided the primary protection for client confidences and secrets for more than 400 years until the ABA Model Code of Professional Responsibility (1969) and ABA Model Rules of Professional Conduct (1983) promulgated the present ethical confidentiality rule.As previously noted, the historical beginnings of confidentiality, as an attorney obligation to a client, can be traced back to medieval times, specifically to the English bar. Interestingly, a medieval ethical canon (oath) required by all medieval pleaders — who were the equivalent of contemporary attorneys — is uncannily similar to Model Rule 1.16. Under Model Rule 1.16, an attorney has the right to withdraw from a representation if the attorney knows that the client is involved in criminal or fraudulent conduct.An early medieval attorney (pleader or serjeant) had to swear under oath that he “will not knowingly maintain or defend wrong or falsehood, but will abandon his client immediately that he perceives his wrongdoing.” Today’s Model Rules 1.6 and 1.16, acting in tandem, impose a similar ethical obligation that has not changed since the medieval oath was introduced in Mirrors of Justices in 1285. In short, as with the medieval ethical oath, the contemporary ethical rule permits the attorney to withdraw as counsel but does not allow disclosure of client secrets. Hence, the modern ethical rule that prohibits an attorney from revealing a client’s secrets had its genesis in early medieval English law’s professional duty of confidentiality.
B. ABA Model Code Canon 4 — “A Lawyer Should Preserve the Confidences and Secrets of a Client”
Until 1937, the evidentiary privilege basically served as the only unequivocal rule restricting attorneys from disclosing client confidences. Before 1937, the American legal bar essentially practiced without an ethical confidentiality rule because for more than 400 years, privilege law that had been developed by the courts served the purpose of protecting client confidences. However, by 1969, the ABA expanded the ethical duty of confidentiality to include not only client confidences but also client secrets. Notably, by including secrets in Model Code Disciplinary Rule (DR) 4-101, the ABA was echoing Lord Whitlocke’s three “general” duties of a serjeant — secrecy, diligence, and fidelity. Not surprisingly, the reason for the expansion of the confidentiality rule is entirely consistent not only with medieval secrecy rules but also with John Henry Wigmore’s behavioral assumption postulating that confidentiality encourages client candor, thus assisting the attorney in ensuring compliance with the law.
C. Model Rule 1.6 — The Expanded Rule of Confidentiality
In 1983, the ABA promulgated Model Rule 1.6 and further expanded the confidentiality rule by protecting not only client confidences and secrets but also “information relating to the representation of a client.” Although the 1983 Model Rules have been amended numerous times, it still remains a fundamental principle in the attorney-client relationship that the confidential nature of the relationship serves the policy function of promoting full and frank communications between attorneys and their clients, thus encouraging observance of the law and the administration of justice. Moreover, this policy consideration has remained consistent with John Henry Wigmore’s behavioral assumption, which explains the motivating force that drives clients to seek early legal assistance and encourages clients to speak openly with their lawyers. This behavioral assumption is expressly noted in both ABA Model Code Ethical Consideration (EC) 4-1 and ABA Model Rule 1.6 Comment 2.Yet despite the ABA’s complete devotion to John Henry Wigmore’s behavioral assumption to justify the emergence of a broad confidentiality rule, there is no empirical evidence to support this assumption or the necessity of a confidentiality rule to protect client secrets because, as one ethics scholar observed, “[T]he traditional evidentiary rule of attorney-client privilege would continue to [en]sure the integrity of the judicial process in the absence of an ethical rule of confidentiality.” In fact, many commentators have questioned this behavioral assumption as being based on a false premise and have further questioned whether the social cost of the confidentiality rule outweighs its illusory benefit.Indeed, the pervasiveness of Model Rule 1.6 throughout the Model Rules regime evidences the fact that current confidentiality rules enjoy a sacrosanct place in the ethical codes for lawyers. Stated differently, this pervasiveness evidences the importance of confidentiality to contemporary organized bar members as a means to enhance their importance in the legal system while receiving an economic benefit. Just as important, this pervasiveness evidences an explicit bias in the ABA Model Rules for preserving confidences at the expense of the rules of candor, fairness, integrity, and truthfulness. Essentially, the ABA Model Rules encourage secrecy at the expense of transparency in the administration of justice. Furthermore, the prominence of confidentiality in the legal profession and common law has also encouraged the development of secrecy law in government and corporate malfeasance in the private sector.
III. Why Does Model Rule 1.6 Exist?
A. The Need for Model Rule 1.6 Is Unsupported by Empirical Evidence
Presently, the generally accepted rationale for the confidentiality rule is that it encourages clients to provide complete, accurate information to their lawyers to ensure that the lawyers can represent their clients competently. This behavioral assumption, which was introduced by John Henry Wigmore, is still cited today as the essential basis for the attorney-client privilege as well as justification for an ethical rule of confidentiality. However, many scholars have noted that the ABA’s 1969 construct of an ethical rule of confidentiality, which is based on John Henry Wigmore’s instrumental theory, is not supported by empirical data.Because the confidentiality rule is rooted in early medieval bar oaths, some scholars question whether the rule is outdated because, with the rule, the modern bar functions more as a medieval craft guild whose purpose is to protect its members rather than to serve the public interest in administering justice. Moreover, the rule itself can be seen as serving the purpose of fostering a guild mentality that ensures the legal guild’s preservation through the development of a social relationship between client and lawyer — a relationship that defines the mode of production and delivery of legal services that is more concerned with protecting guild member interests than the interests of those receiving their services.Due to current academic skepticism, it is still questionable whether the recent ABA expansion of the rule of confidentiality serves the public interest because the need for the rule has not been substantiated by any empirical data supporting the behavioral assumption that grounds it. Furthermore, because development of the common-law evidentiary privilege is driven by the ethical rule of confidentiality, court-established norms of secrecy in the context of the attorney-client privilege have also seen recent expansion aligned with the ABA confidentiality rule. More specifically, the behavioral rationale for the rule, and the expansion of it, has produced a distorted expansion of evidentiary privileges beyond reasonable limits. This distortion has created externalities that have increased the societal costs to our judicial system of justice. In short, the expansion of the rule of confidentiality in 1969 has created a legal norm postulating that secrecy is more important than the courts’ truth-seeking function — a function that is necessary for administering justice.Ironically, the justification for a strict confidentiality rule conveniently ignores the fact that when a judge applies any evidentiary privilege, the judge is excluding relevant evidence that could assist the trier of fact, thus limiting the probability that fundamental justice will be administered. As a matter of convenience, proponents for the expansion of strict confidentiality discount this observation by simply noting that without the existence of the privilege, there is no communication withheld because the existence of the privilege induces client confidences. Similarly, based on the prevailing behavioral assumption, without the privilege, clients would be reluctant to exercise candor with counsel, thus diminishing counsel’s role in guiding them in the observance of the law, which ostensibly defeats the administration of justice. As previously argued, this logical syllogism is not grounded in empirical proof and is admittedly an assumption and nothing more.
B. The Societal Costs of Model Rule 1.6 Actually Outweigh Its Benefits
The “costs of confidentiality — egregious instances of unfairness or injustice, undermining of the public trust in the legal system, and declining transparency in society overall” — do not justify Model Rule 1.6’s existence. In sum, the rule’s social costs outweigh its benefits. As previously argued, the supposed primary benefit of Rule 1.6 is that confidentiality rules create trust and transparency between clients and their counsel, but this seems to rest on a false premise. Moreover, broader benefits supposedly resulting from the rule, such as inducing client disclosures, preventing client misconduct, and enhancing client autonomy, are not supported by empirical evidence. Furthermore, since the rule of confidentiality impedes transparency, it generally undermines public confidence in our legal system. Finally, government and corporate malfeasance is causally connected to the lack of transparency that the rule of confidentiality creates.Recent scholarship has undoubtedly argued that the rule of confidentiality has deleterious social effects, such as fostering public harms (e.g., the social cost exacted by confidential settlement agreements); producing international transactional costs that impede effective global policy initiatives on public international law (e.g., initiatives in public finance, human rights, investment, and environmental regulation); and raising constitutional implications by applying an expansive rule of confidentiality in court-mandated alternative dispute resolution (ADR) methods of settlement (e.g., arbitration, mediation). Hence, a movement to moderate these pernicious social effects has justified the notion that the rule of confidentiality itself must be modified accordingly.
C. Rights-Based Theory of Model Rule 1.6 Not Relied On By the ABA or Any Other Bar Association
The still-dominant instrumental theory espoused by John Henry Wigmore, as reflected in the ABA Model Rules, has become so entrenched in the organized contemporary bar regulatory rules and our common-law dictum that the underlying behavioral assumption for both the instrumental theory of privileges and the rule of confidentiality has become accepted, although unwittingly, by the legal profession as a neoliberal tenet of autonomy. This tenet should be afforded constitutional protections within a zone of privacy necessary for fostering a meaningful attorney-client relationship.Not surprisingly, in elevating the importance of confidentiality in attorney-client relationships, the organized contemporary bar is forced to adopt the premise that the liberty interest of every individual in the other person’s evidence must be subordinate to the neoliberal right of decision-making autonomy as a necessary and natural result of the importance an ordered society places on client confidences and secrets in fostering the attorney-client relationship.Although a rights-based theory for Model Rule 1.6 has strong constitutional appeal, this rationale has never been advanced by either the ABA or any other organized bar association as the justification for a strict rule of confidentiality. To this day, the justification for the contemporary bar’s ethical rule of confidentiality relies primarily on the behavioral assumption of John Henry Wigmore’s instrumental theory that client confidences and secrets are privileged information.
IV. Social Externalities Outweigh the Need for Model Rule 1.6
A. Model Rule 1.6 Duplicates the Attorney-Client Privilege
Unquestionably, Model Rule 1.6 duplicates attorney-client privilege law that has effectively protected client confidences and secrets for more than 400 years. This historical fact demonstrates that the recent prominence of the contemporary rule of confidentiality serves another purpose that the contemporary bar refuses to acknowledge. Commentators have observed that client confidences are fully protected by the conflict of interest Model Rules, work product doctrine, hearsay rules, and evidentiary rules, thus exposing the rule of confidentiality for what it truly is: a rule designed to protect the American legal guild from outside regulatory pressures.As stated previously, the American legal guild has been delivering legal services without the rule of confidentiality for more than 400 years. However, because the contemporary bar acts with a guild or cartel mentality, it will not willingly modify the present regime of regulatory rules and continues to promote the mode through which it produces legal services — a social relationship defined by the attorney-client confidentiality rule.Even a cursory review of the contemporary conflict of interest rules reveals that they more than adequately provide protection against a lawyer compromising client secrets or confidences. In short, the rule of confidentiality simply duplicates the same protections afforded by the conflict of interest rules. This is evident when comparing the dangers to be avoided in both categories of rules. For instance, although the conflict of interest rules comprise Model Rules 1.7, 1.8, 1.9, 1.10, 1.11, 1.12, and 1.13, most of the heavy lifting is accomplished by Rules 1.7 through 1.11 “in protecting clients from predatory practitioners, not the confidentiality rules.”Rule 1.7 protects against information being shared among various clients; Rule 1.8 protects against client transactional information being used by a lawyer to a client’s disadvantage; Rule 1.9 protects against a lawyer using a former client’s secrets or confidences in a matter substantially related and materially adverse to the former client; Rule 1.10 protects against revealing client secrets and confidences in a law firm setting; and finally, Rule 1.11 protects against a former government or public lawyer revealing government secrets or confidences in representing clients he or she dealt with while employed by the government or public agency.In sum, the conflict of interest rules provide protection in most circumstances that arise under the rule of confidentiality. Notwithstanding the conflict of interest rules, the fact is that privilege law, evidentiary rules (i.e., hearsay rules), and other civil procedural safeguards, such as the attorney work product doctrine, make the rule of confidentiality superfluous. Combined, these rules seek to prevent lawyer abuses similar, if not identical, to those the rule of confidentiality is purported to prevent.Moreover, the rule of confidentiality and the attorney-client privilege are so interrelated that the terms privileged and confidential are commonly used interchangeably. Understandably, it should come as no surprise that the policy concerns grounding the rule of confidentiality are shared by the attorney-client privilege. Simply stated, similar to the justification underpinning the rule of confidentiality, the attorney-client privilege serves the policy function of promoting full and frank communications between attorneys and their clients so as to encourage observance of the law and the administration of justice.The symbiotic development of the concept of confidentiality of client information and the evidentiary attorney-client privilege can be traced back to the 16th century. Indeed, “[T]he attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” And, up until recently, it served as the primary protection from client confidences and secrets being disclosed. Therefore, much scholarship has challenged the notion that the confidentiality rule is necessary in light of the historical effectiveness of the attorney-client privilege protecting client confidences and secrets. In fact, recent scholarship has argued for further narrowing the privilege to facilitate the court’s truth-seeking function and, more broadly, to instill confidence in the legal system as well as confidence in government and financial institutions, which has declined precipitously since the 1970s. The idea that the privilege’s application should be further limited has support in our common law and is consistent with its conceptual beginnings.B. Model Rule 1.6 Undermines Government Accountability and Trust in Government and Our Legal System
In 1908, the Preamble to the ABA Canons of Professional Ethics underlined a lawyer’s civil obligation to promote confidence in the integrity and impartiality of the administration of justice, which the future of the republic depended on. Consistent with these canons, in 1969, the Preamble to the ABA Model Code of Professional Responsibility functionally introduced the ABA’s regulatory regime as a sociopolitical mechanism to ensure “the continued existence of a free and democratic society, [which] depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened self-government.” The ABA Model Code further postulated that “[l]aw so grounded makes justice possible … . Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational self-government is impossible.”Similarly, in 1983, the ABA Model Rules of Professional Conduct Preamble also provided that “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” Clearly, in 1908, 1969, and 1983, the ABA promoted itself as being instrumental in protecting democratic values and ensuring confidence in our democratic institutions. However, this laudable civic goal is presently at odds with polling data measuring the current level of mistrust in government and our representatives.A recent Pew Research Center study of government trust noted, “Public trust in the government remains near historic lows. Only 17% of Americans today say they can trust the government in Washington to do what is right ‘just about always’ (3%) or ‘most of the time’ (14%).” Another Pew Research Center survey found that 81 percent of those surveyed feel that members of Congress act unethically “some” or “all or most of the time.” Given the high percentage of lawyers in government, who serve both a public interest and institutional interest, the rule of confidentiality allows secrecy to flourish at the expense of transparency in social policy affecting millions of Americans.Not surprisingly, the democratic values historically promoted by the ABA’s regulatory rules are not promoted by the rule of confidentiality. In fact, another study by the Pew Research Center revealed that Americans believe more transparency in government will lead to better government, thus confirming the causal link between transparency and accountability in our government.Whether the current high level of public mistrust in our legal/political environment can be directly correlated with the organized bar’s expansion of the confidentiality rule or whether such correlation has had an indirect causal effect is a matter for debate, but it is irrefutable that the expansion of confidentiality as an ethical duty and the rise of mistrust in our legal/political institutions have occurred simultaneously. This observation does not bode well for “a functioning democracy, [which] depends heavily on the rule of law, and the public’s confidence that the legal system [will uphold] the rule of law,” which only a legal/political culture of transparency rather than a culture of secrecy can deliver.In sum, because confidentiality rules are essentially rules of secrecy, they undermine the public’s confidence in our government and legal system and produce unjust or erroneous outcomes in cases and transactions. Generally speaking, since lawyer confidentiality interferes with transparency in our society, secrecy, as a practical principle applied by our government officials and members of financial institutions and other corporate power structures in their interactions, undermines transparency and therefore public trust in these organizations. Although many of the ABA Model Rules mandate candor, integrity, truthfulness, and fairness, Model Rule 1.6 “sets the outer bounds for the truthfulness rules or trumps the disclosure rules.” In essence, Model Rule 1.6 not only creates a destructive tension in the Model Rules themselves but also external societal costs that have a detrimental effect on our daily lives.C. Model Rule 1.6 Benefits Lawyers Rather Than Clients
The ABA Model Rules Preamble generally claims, “The profession has a responsibility to [en]sure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.” However, as argued herein, ABA Model Rule 1.6 is designed to benefit attorneys rather than clients. In addition, the fact that Model Rule 1.6 is repeatedly cross-referenced in many of the other Model Rules is testament to the importance the rule plays in diluting and eroding an attorney’s duty of candor, fairness, and integrity. Furthermore, this repeated cross-referencing is conclusive proof that the conventional wisdom that strict confidentiality rules are necessary for fostering attorney-client communications is still the dominant behavioral assumption grounding Model Rule 1.6 as well as the evidentiary attorney-client privilege, even though there is absolutely no empirical evidence supporting that assumption. Therefore, the tension between the court’s truth-finding function and an absolute confidentiality rule has resulted in a synergetic relationship based on a false premise. This synergetic relationship has produced unreasonable expansion of privilege law aligned with ABA constructs for confidential relationships.Undeniably, this tension has medieval beginnings. The medieval bar espoused an attorney duty to reveal to the court all truthful information while demanding that client secrets be held in confidence. Ironically, notwithstanding the fact that this tension still exists today, the contemporary bar still insists that the conventional rationale for the present evidentiary attorney-client privilege would not exist but for the rule of confidentiality. However, this tautological reasoning is not supported by empirical research on the subject.If one were to analyze the need for the confidentiality rule through the prism of class identification, one could not escape the conclusion that the contemporary bar is the functional equivalent of a cartel, acting much like a medieval craft guild. The assertion that the contemporary bar is there to protect its constituency has led one commentator to conclude, “By analogy, letting bar associations prescribe the rules for [ethical] opinions is equivalent to allowing the American Medical Association to specify the tort law principles applicable to medical malpractice actions.” Similarly stated, “just as the medieval guild screened out the worst performers of its profession, but suppressed competition among its remaining members, so too does the contemporary bar association seek to protect its members from both liability and competition” through its ethical opinions.The idea that the ABA should institutionalize opinions as a mechanism to control its membership had its genesis in 1919, as noted in the ABA Model Rules Preface.However, to this day, the primary purpose of lawyer discipline is not to punish the lawyer but rather “to protect the public, the bar, and legal institutions against lawyers who have demonstrated an unwillingness to comply with minimal legal standards” — behavior that would jeopardize the contemporary legal guild’s cohesiveness and self-governing status.For example, the 1969 ABA Model Code postulated, “[T]he Code is designed to be adopted by appropriate agencies both as an inspirational guide to the members of the profession and as a basis for disciplinary action when the conduct of a lawyer falls below the required minimum standards stated in the Disciplinary Rules.” Thus, the ABA regulatory axiom in 1969 was based on preserving minimum uniformity in the quality of the legal services provided by the contemporary legal guild, similar to the medieval craft guild’s regulatory scheme that forced its members to deliver craft services within the guild’s guidelines and according to its standard of production. Presently, the contemporary legal guild’s standard of production in delivering legal services is dominated by a social relationship between client and attorney defined by the ethical rule of confidentiality. Although the current ABA Model Rules espouse that “[t]he profession has a responsibility to [en]sure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar,” much scholarship on ethics has concluded otherwise.D. Model Rule 1.6 Undermines Truth-Seeking Function of the Courts
Undoubtedly, given the historical public interest underpinnings of the rule of confidentiality and the contemporary bar’s overzealous attachment to secrecy as a core requirement of an attorney-client relationship — which is not grounded in logic or empirical reasoning but inspired by blind devotion to a medieval legal concept or, at best, to an unfounded behavioral assumption — the confidentiality rule will continue to erode public trust and confidence in our legal system of justice. This is so because presently our courts continue to endorse this behavioral assumption based on the contemporary bar’s blind devotion to confidentiality as an ethical duty.Additionally, adherence by courts to this outdated norm of secrecy in our legal profession continues despite the fact that it distorts the appropriate balance between attorney-client secrecy and the courts’ need to obtain relevant evidence, thereby further diminishing the administration of justice rather than enhancing it. In sum, by suppressing relevant and material facts from disclosure, the symbiotic relationship between the confidentiality rule and the attorney-client privilege has a powerful causal effect in eliminating fundamental fairness in the administration of justice rather than in fostering it.E. Model Rule 1.6 Stunts Innovative Delivery of Legal Services
Given the aforementioned disruptive effects the rule of confidentiality has on an ordered society’s legal and governing institutions, commentators have recommended eliminating the rule as an ethical duty and have asserted that the present evidentiary attorney-client privilege can achieve the same results without the confidentiality rule. This further suggests that the synergy between the rule of confidentiality and the attorney-client privilege is an illusion and is not based in empirical fact but in an alternative reality that is perpetuated by the contemporary organized bar members’ conclusory assumption that client confidentiality is a fundamental requirement for ensuring candor and competency within the attorney-client relationship.Ironically, one commentator has observed that given recent technological developments in how confidential information is disseminated and the globalization of the legal practice, recent amendments to the Model Rules “reflect the relatively limited potential of the ‘law of lawyering’ to change how legal services are delivered.” Moreover, recent scholarship has further observed that confidentiality as an ethical duty will expand into other law-related services as a natural progression of the present legal practice evolving into an integrated law practice. This will require the legal profession to provide services well beyond those that are traditionally and routinely offered in law offices.Hence, the dominant role the rule of confidentiality holds in the ABA’s ethical regime will require revision due to the globalization of the legal practice and the technological advancements in communication and information dissemination — advancements that are producing revolutionary changes in the delivery of legal and law-related services that will require less secrecy and more transparency. Similar to the manner in which the industrial revolution exposed the inability of the medieval craft guilds’ organizational form to compete efficiently within an industrialized form of market production, which elevated mass production over artisanry, globalization of the legal profession and revolutionary advancements in information technology have exposed the inability of the contemporary organized bars’ outmoded and inflexible business structures, which rely heavily on a rule of confidentiality defining the attorney-client relationship, to efficiently and competitively deliver legal and law-related services.The confidentiality rule operates to protect secrets made within the context of a professional relationship (e.g., the attorney-client relationship), which stands in the way of the ABA transforming its present professional model to a business model that requires more transparency and less secrecy. Thus, if current trends continue, the ABA will be pressured to redefine core principles of the attorney-client relationship (i.e., the rule of confidentiality) because a global market system driven by information technology requires a greater degree of information transparency or less information asymmetry in order to be competitive and efficient in meeting the rising demand for traditional legal services and law-related services.Just as the regulatory rules of the medieval craft guild business structure shackled the potential to innovate and adapt to new relations of production, which led to the guild’s demise, the regulatory rules of the contemporary organized bar and its rationale based on protecting confidential professional relations of production/delivery of legal services, are proving to be an obstacle that are preventing the contemporary legal bar from adapting to the new globalized legal economy. This new economy requires more transformative business structures with the capacity and potential to deliver cost-efficient legal and law-related services to those otherwise unable to access the legal system, which the present mode of delivering legal services, dominated by confidential relations of production, cannot achieve. In sum, a cost-effective delivery system of legal services requires the reduction of information asymmetry that the rule of confidentiality creates.
V. Model Rules 1.14 and 1.6 and NAELA Aspirational Standards E and G: Cartel Rules, Craft Guild Membership Rules, Bar Regulatory Rules, and/or Aspirational Standards?
In 1983, the ABA introduced Model Rule 1.14, Client With Diminished Capacity, in reference to the representation of clients “under a disability.” However, in 2002, the ABA broadened this category to include clients with “diminished capacity,” in recognition of the continuum of client capacity. In addition, language was added to clarify the lawyer’s confidentiality obligations under Model Rule 1.6.In sum, presently, Model Rule 1.14 addresses a lawyer’s ethical obligations when a client’s diminished capacity interferes with the client’s cognitive ability to make adequately considered decisions. Paragraph (a) directs the lawyer to maintain a “normal client-lawyer relationship” to the extent possible. If the lawyer believes that the client is at risk of harm and cannot act in his or her own interest, paragraph (b) permits the lawyer to “take reasonably necessary protective action” under specified conditions. Although paragraph (c) explicitly provides that disclosure of client information is “impliedly authorized” by Model Rule 1.6, Confidentiality of Information, that authority is narrowed by the following caveat: “but only to the extent reasonably necessary to protect the client’s interests.” This statement was provided to offer guidance in evaluating a client’s diminished capacity and in determining whether protective action should be taken.Similarly, the National Academy of Elder Law Attorneys promulgated its Aspirational Standards to help elder law attorneys meet their ethical obligations expressed in ABA Model Rules 1.14 and 1.6. Given the unique client circumstances elder law attorneys confront on a daily basis, NAELA sought to set additional practice guidelines to assist these attorneys in implementing the principles set forth in Model Rules 1.14 and 1.6 in their elder law practices. To illustrate, Aspirational Standard E § 4 mandates strict preservation of client confidences, while Aspirational Standard E § 6 tempers Aspirational Standard E § 4’s strict mandate to the extent possible while meeting laws, regulations, or court orders imposing a duty to disclose. Further, Aspirational Standard G § 1 counsels the elder law attorney to continue to respect confidences of a client with diminished capacity, while Aspirational Standard G § 6 cautions the attorney not to disclose more than is reasonably necessary to protect such a client from physical, financial, or other harm.Interestingly, ABA Model Rule 1.14(c) and NAELA Aspirational Standard G cmt. 5 include similar exceptions to Model Rule 1.6 for clients who obviously need protective action, but then limits the attorney’s assistance “to the extent reasonably necessary to protect the client’s interests” or, “the attorney should do no more than is necessary to protect the client,” respectively. Thus, just as the ABA Model Rules fail to provide an empirically supported justification for the necessity of a strict rule of confidentiality to induce client candor, the NAELA Aspirational Standards also fail to provide an empirically sufficient rationale for preserving confidences when an elder law attorney is faced with circumstances that require protective action for clients with diminished capacity who cannot help themselves or who, because of their diminished capacity, cannot appreciate the consequences of not acting. Furthermore, similar to the Model Rules, the Aspirational Standards assert rationales in a conclusory manner in support of a strict rule of confidentiality as necessary to maintain a client’s decision-making autonomy. In short, the ABA’s and NAELA’s respective rationales are identical because both rely on the behavioral assumption espoused by John Henry Wigmore to justify the need for a strict confidentiality rule.
To illustrate, NAELA Aspirational Standard E § 1 Comment states: “Confidentiality of client information is a core fundamental principle of the attorney-client relationship, and the attorney must guard against the disclosure of the client’s protected confidential information.” This language comports with John Henry Wigmore’s instrumental theory because recognition of an evidentiary privilege is an essential instrument or means of promoting social relationships, “which in the opinion of the community ought to be sedulously fostered.” In fact, NAELA’s Aspirational Standard on confidentiality seems to appeal to the authority of John Henry Wigmore’s instrumental theory for recognizing interpersonal communication privileges because, in order to be a member of NAELA, one has to shield client confidences from disclosure, presumably by invoking ABA Model Rule 1.6 or the attorney-client privilege, to protect NAELA’s organizational precept that “[c]onfidentiality of client information is a core fundamental principle of the attorney-client relationship … .”NAELA’s precept concerning confidentiality, itself being based on a behavioral assumption (i.e., that a typical layperson such as an elderly client would neither consult with nor divulge to a confidant, such as an attorney, but for the assurance of confidentiality furnished by a formal evidentiary privilege) is testament to NAELA’s devotion to John Henry Wigmore’s instrumental theory’s behavioral assumption. Therefore, as with the ABA Model Rules, the NAELA Aspirational Standards implicitly adopt Wigmore’s behavioral assumption as its rationale or justification for a strict confidentiality rule.
Arguably, NAELA itself can be viewed as the functional equivalent of an organization operating similar to a medieval craft guild or cartel because NAELA sets standards for membership and rules to regulate (guide) its members in providing competent services to elderly clients while preserving strict adherence to confidentiality. The confidentiality relationship between lawyer and client established by these standards defines the mode of production in delivering legal and law-related services to elderly clients. If ABA Model Rule 1.6 is designed to benefit attorneys rather than clients, as some commentators have observed, it would logically follow that the NAELA Aspirational Standards are also implemented to protect the interests of elder law attorneys because both ethical (aspirational) regimes mirror each other. More specifically, NAELA Aspirational Standard E, Confidentiality, implicitly adopts the rationales, justifications, and policy reasons identical to those that ground John Henry Wigmore’s instrumental theory for an evidentiary attorney-client privilege, whose validity has been refuted by recent scholarship due to the absence of empirical data justifying it.VI. Ethical Dilemmas for Elder Law Attorneys Created by Model Rule 1.6 Juxtaposed With Model Rule 1.14 and NAELA Aspirational Standards E and G
As stated in ABA Model Rule 1.6 Comment 2, “A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. … This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.” NAELA Aspirational Standard E § 1 Comment echoes this ethical precept in stating, “Confidentiality of client information is a core fundamental principle of the attorney-client relationship, and the attorney must guard against the disclosure of the client’s protected confidential information.” In fact, as previously argued, the principle of confidentiality dominates both the ABA Model Rules and the NAELA Aspirational Standards.Interestingly, although NAELA promotes Model Rule 1.6 as a governing principle in its holistic approach, NAELA intuitively recognizes that the behavioral assumptions of the instrumental theory grounding the rule of confidentiality are misplaced because NAELA implemented Aspirational Standard H. This illustrates that, in NAELA’s legal guild structure, the rule of confidentiality plays a different role other than soliciting a meaningful level of client candor necessary to achieve the following goals of the holistic approach: elder “independence and autonomy” and timely “protection from exploitation, abuse, and neglect.”In practice, the tension between Aspirational Standards E and G creates an ethical conflict within the Aspirational Standards. This tension results from the rule of confidentiality’s dominant role in how an elder law practitioner determines which elder preferences are selected in maintaining the elder’s “autonomy and self-determination.” This determination process, which is generally at the expense of not instituting timely protection from exploitation, abuse, and neglect, thus creates further tension with the elder law attorney’s duty of diligence and competency in handling elder client matters in a timely manner. In sum, the rule of confidentiality, as with the ABA Model Rules, creates tension within NAELA’s Aspirational Standards, thus leaving confusion regarding what an elder law practitioner should do when he or she becomes aware of elder abuse.A. Elder Abuse and Model Rule 1.6
According to the Department of Health and Human Services Administration on Aging, between 2007 and 2017, the population age 60 and older increased 35 percent from 52.5 million to 70.8 million. The population age 65 and older increased from 37.8 million in 2007 to 50.9 million in 2017 (a 34 percent increase) and is projected to reach 94.7 million in 2060. By 2040, there will be about 80.8 million older Americans, more than twice their number in 2000. People age 65 and older represented 15.6 percent of the population in 2017 but are expected to increase to 21.6 percent of the population by 2040. The 85 and older population is projected to more than double from 6.5 million in 2017 to 14.4 million in 2040 (a 123 percent increase). In short, our population is graying fast.The five states with the highest percentage of persons age 65 and older in 2017 were Florida (20.1 percent), Maine (19.9 percent), West Virginia (19.4 percent), Vermont (18.7 percent), and Montana (18.1 percent). Moreover, the National Adult Maltreatment Reporting System (NAMRS) Adult Maltreatment Report 2018 for adult protective services’ clients and victims of abuse reported that 70 percent of abused adults were age 60 or older. Hence, given that the elder population is growing at an accelerated pace, elder abuse will continue to be a growing and pervasive social harm that elder law attorneys will be forced to address in delivering protective legal services to elder clients under NAELA’s holistic approach.Interestingly, recent scholarship has revealed that the duty of confidentiality imposed on attorneys greatly hinders their ability to disclose abuse. The duty of confidentiality most likely forbids a lawyer from disclosing abuse unless the client gives informed consent. Even if the lawyer is in a jurisdiction that requires lawyers to report abuse, the ABA Model Rules impose a presumption against supersession that makes it unclear whether mandatory reporting laws abrogate a lawyer’s duty of confidentiality. For example, although Florida imposes a statutory duty for all persons to report elder abuse, attorneys are not expressly listed in the statute as professionals who are required to report such abuse. Moreover, even if Florida’s mandatory reporting statute implicitly applies to attorneys, Florida Bar Rule 4-1.6 imposes a presumption against supersession that leaves the issues of compliance subject to interpretation.This tension creates a practical as well as ethical dilemma for attorneys in Florida because if an attorney reasonably believes abuse is occurring, Florida’s confidentiality rule creates a presumption against supersession, thus placing the attorney in an ethical dilemma. In practice, an attorney would be required to comply with his or her ethical duty of confidentiality until forced by court order to report abuses that his or her client has not given informed consent to report and even then, under Model Rule 1.6(b)(6), reporting client confidences or secrets is permitted, not mandatory.Given the exponential growth of the elderly population and mental illnesses associated with this population, providing timely protective action to stem elder abuse raises ethical issues for elder law practitioners. In acknowledging this ethical tension, NAELA directs elder law practitioners to presume capacity until facts and circumstances override that presumption. However, even when not confronted with a client suffering from apparent diminished capacity, the subjective circularity imposed by ABA Model Rule 1.14 and NAELA Aspirational Standard G requires elder law practitioners to assess capacity continually when dealing with elder clients. Not surprisingly, capacity assessments are a daily exercise for elder law practitioners, particularly when there is a reasonable suspicion of elder abuse. Therefore, in the context of elder abuse, ABA Model Rules 1.6 and 1.14, and NAELA’s counterparts, Aspirational Standards E and G, create ethical dilemmas for elder law attorneys.In addition, because attorneys are ethically mandated to strictly preserve client confidences and secrets in applying the NAELA holistic approach, ABA Model Rule 1.14 and NAELA Aspirational Standard G further hinder abuse reporting because both require the elder law practitioner to use the least restrictive means to address abuse. When a reasonable suspicion of elder abuse arises, the attorney must first assess the elderly client’s capacity to engage in a normal attorney-client relationship before the attorney can determine whether the client has the capacity to exercise self-determination in selecting preferences that are consistent with his or her known wishes and best interests, thus ensuring the elderly client’s autonomy. As previously alluded to, the social relationship between client and attorney, which is dominated by the rule of confidentiality, makes it increasingly difficult for the attorney to deliver timely and appropriate services to abused elderly clients that are in accord with their known wishes and best interests and consistent with their values.B. Capacity Determinations and Ethical Dilemmas
The process of making capacity determinations has been characterized as the “black hole of legal ethics.” Although the ABA Model Rules and NAELA Aspirational Standards provide guidelines for assessing whether an elderly client is suffering from diminished capacity, in the end the attorney has wide discretion in making determinations about capacity. However, in order to determine whether any protective action is necessary to address an elderly client’s abuse, the lawyer must first assess the client’s capacity.This is problematic because a client may experience a steady decline in capacity. Also, a client’s competency may vary depending on the day or even the time of day. Therefore, because capacity assessments can vary with the same individual for a variety of reasons, elder law attorneys must depend on independent professional services for assessing a client’s capacity but always in the shadow of the rule of confidentiality.In appropriate circumstances the “lawyer may seek guidance from an appropriate diagnostician” to determine an elderly client’s capacity to select preferences. But even with the client’s informed consent, a breach of confidentiality can still occur because most states have mandatory reporting for diagnosticians. In this scenario, an ethical dilemma arises because if a diagnostician finds that the elderly client does not have the capacity to formulate informed consent, lacks the faculties to understand the fact that he or she is being abused, or cannot understand the consequences of the abuse, any informed consent the client gave to reveal abuse prior to the capacity assessment is invalidated by such incapacity determination. This dilemma deters attorneys from using independent professional services to assess capacity because such ethical breach is not authorized by ABA Model Rule 1.14 or NAELA Aspirational Standard E.In sum, although obtaining informed consent waivers is a good practice for elder law attorneys under these circumstances, it is not an absolute safeguard against an ethical breach. Eliminating or further restricting the rule of confidentiality is the only fail-safe way to avoid this dilemma while encouraging elder abuse reporting, which is more consistent with the elder law practitioner’s ethical duty to act in a timely and competent manner. Additionally, by facilitating reporting, the costs associated with capacity assessments are shifted to society in general for both the elderly client and the attorney, thus making protective action and capacity assessments more easily accessible and cost-effective.
C. Model Rule 1.6 Inhibition of Achievement of the Goals of the NAELA Holistic Approach
“Since the holistic approach may go beyond traditional legal services,” Model Rule 1.6 presents an obstacle to delivering law-related services to elderly clients who are attempting to meet their “life needs” — needs the holistic approach is designed to deliver. In specific terms, the holistic approach encourages the use of law-related services, such as the services of diagnosticians, in making capacity assessments. However, the rule of confidentiality hinders the use of diagnosticians because presently there is no privilege exception to protect the attorney when using a diagnostician or disclosure exception to protect the attorney during the assessment of a client’s capacity. In other words, when using diagnosticians to assess an elderly client’s capacity, there is no privilege law or ethical exception to shield the elder law practitioner from the ethical dilemmas created by a strict rule of confidentiality. In general terms, the rule of confidentiality restricts the application of collaborative interdisciplinary business models that would better achieve the goals of the holistic approach outlined in NAELA Aspirational Standard A.Although much scholarship has argued that multidisciplinary practice models (MDPs) and medical-legal partnerships (MLPs) make legal services more accessible and cost-effective for the elderly, the ABA still adamantly refuses to permit alternative business models to facilitate the delivery of law-related services. The ethical debate to allow collaborative interdisciplinary business models has been ongoing for several decades, but the ABA still opposes the general use of these alternative business models principally because of the rule of confidentiality. However, one commentator has correctly noted that the ABA’s strident opposition is counterintuitive to Restatement (Third) of the Law Governing Lawyers.Notably, Restatement (Third) explicates the general principle that a third party in attendance at attorney-client meetings does not break the privilege if the third party is in a profession with a similar confidentiality privilege. Hence, because social workers and medical professionals have a duty to preserve client confidences and secrets, the principles set forth in Restatement (Third) would extend the attorney-client privilege to communications with these professionals. Furthermore, Restatement (Third) explicitly provides that, under certain circumstances, the attorney-client privilege attaches when the client has a reasonable expectation that the matter will be kept confidential. Arguably, and as provided by Restatement (Third), if an interdisciplinary party is present during an attorney-client meeting, the client’s expectation interest is met and the attorney-client privilege attaches to the matter discussed, thus protecting the client’s confidential information. Notwithstanding this analytic perspective, the ABA refuses to adopt the Restatement (Third) rationale and adheres to John Henry Wigmore’s instrumental behavioral assumption to justify its adamant refusal to accept the use of collaborative interdisciplinary business models to facilitate efficient, cost-effective, and timely delivery of legal and law-related services to the elderly consistent with the NAELA holistic approach.VII. Conclusion
Recent scholarship has attacked the necessity of a rule of confidentiality on the following grounds. First, it impedes access to the truth and consequently creates information asymmetry that hinders the truth-finding function of the courts. Second, it has led to the distorted expansion of privilege law beyond reasonable bounds. Third, it creates public mistrust in government and in corporate governance. Fourth, it stunts innovative change in the delivery of legal services for the bar generally and for NAELA’s holistic approach specifically. These social externalities increase society’s transactional costs associated with these institutions; therefore, they compellingly support the conclusion that Model Rule 1.6, Confidentiality of Information, primarily serves the functional purpose of maintaining the internal cohesiveness of the contemporary legal guild, which benefits guild members’ economic interests while ensuring members’ independence from external regulation.As a consequence of the rule of confidentiality, bar members are forced to rely on an outdated mode of production in delivering legal services, which places the American legal guild at a disadvantage in competing in a global economy characterized by transformative technological and informational changes that require transparency in transactions. The destructive consequences of the rule of confidentiality further obstructs the ability of older adults to benefit from a more effective and cost-efficient business model that would enhance the NAELA holistic approach “especially when the capacity of the person being served in the legal representation is diminished.”To clarify, because the contemporary rule of confidentiality dominates the ABA ethical regime, it imposes a social relationship between client and lawyer that defines the mode of production in delivering legal services that not only hinders access to the legal system but also stunts innovative change necessary to meet the increasing demand for legal services. Significantly, since the ABA ethics regime is rooted in medieval ethical concepts, the present legal guild structure faces extinction unless it sheds its cartel or guild mentality by ridding itself of the rule of confidentiality, thus enabling it to adapt to the challenges brought on by a revolutionary global informational and technological economy. This challenge will require American contemporary bar organizations to reform their social relations of production in the way legal services are delivered because an expanding global economy is creating a greater demand for those services. Confidential relations of production in the present legal guild business structure are no longer viable because the structure relies on an outdated confidential attorney-client relationship, or social relations of production dominated by rules of secrecy, that obstructs efficiency and competitiveness in the delivery of legal services.