Unpopular Privacy: What Must We Hide?

By Anita L. Allen | Go to book overview

5
CONFIDENTIALITY

The law mandates confidentiality. For men and women with a range of occupations, confidentiality is a legal obligation to remain strictly silent about some matters and limit communications about others. Lawyers, for example, are bound by law, along with their codes of professional responsibility, to maintain the confidentiality of communications with their clients.1 The American Bar Association (ABA) promulgates codes of professional responsibility for lawyers. The federal government and fortynine of the United States have enacted ABA standards into law, either the ABA Model Code of Professional Responsibility or the later ABA Model Rules of Professional Conduct. The official rules of evidence employed in state and federal courts recognize an attorney-client privilege, empowering clients to expect attorneys to keep quiet about the contents of their private, undisclosed communications. Lawyers routinely meet legal obligations of confidence-keeping with respect to those who seek their advice through silence, selective disclosure, and securing electronic data.

An accused thief confesses to her lawyer that she is indeed the person who stole a prized artifact from her town’s history museum. The lawyer must keep the thief’s admission a secret, foregoing the righteousness and rewards of solving a despicable crime. It is not easy for lawyers to remain silent when there is something interesting or important to talk about. Obligations of silence burden the conscience, and frustrate the passion for dialogue and recognition, gossip and curiosity-feeding. Viewed in this light, obligations of confidentiality are potentially unpopular privacies.

In the 1980s I briefly worked as an attorney at Cravath, Swaine & Moore, a prominent Wall Street law firm in Manhattan with a long history of representing big business. When I remarked on the unusually large number of male clerical workers employed by the firm, a senior partner described the aging men as relics of an era in which his colleagues believed men were better at keeping client confidences than women.2 The truth of the matter is that keeping quiet when you should is a challenging discipline for most any man or woman.

Take, for example, Paul Gianamore. In 1999 Gianamore worked as a financial analyst at Credit Suisse First Boston, a major investment bank. Through e-mail, phone calls, and regular get-togethers, he told his best friend Ryan Evans about confidential tender offers and mergers discussed at the bank. Gianamore must have

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