Should a Lawyer Blow the Whistle?
Andrews, James H., The Christian Science Monitor
IN "The Firm," last summer's blockbuster movie, Mitch - the young lawyer played by Tom Cruise - faced a quandary. He discovered that his law firm, as a front for the mob, was aiding and abetting fraud, money laundering, and even murder. But Mitch couldn't blow the whistle on his colleagues without being disbarred for violating the attorney-client privilege.
Mitch found a way out of his dilemma, sending the crooked lawyers to jail without losing his license. But for lots of real-life lawyers, ethical quicksands aren't escaped so neatly. The attorney-client privilege and the related duty of confidentiality that lawyers owe their clients (the former means that lawyers can't be compelled to disclose clients' secrets, and the latter means that lawyers mustn't volunteer such information) seal many a lawyer's lips, even when the effect is to conceal wrongdoing.
Nonlawyers often are dismayed that legal ethics obligate lawyers to keep silent about matters that, under common standards of decency and morality, should be disclosed to prevent or remedy wrong - even a client's intention to commit a nonviolent crime. Ironically, lawyers' ethical conduct in hiding the truth may contribute as much to public disdain as unethical conduct like ambulance-chasing or stealing widows' money.
Nonlawyers aren't alone in their puzzlement about attorney-client confidences, however. Many lawyers are upset, too, but for the opposite reason: They say attorneys are under unprecedented government pressure to betray client confidences and become informants.
"All around the country, good and honest lawyers are getting subpoenas," says Lawrence Goldman, a defense lawyer in New York.
The theory behind the attorney-client privilege is simple: If lawyers can be forced to divulge information about their clients, people won't consult lawyers - with the result that lawyers won't be able to counsel clients on lawful and unlawful conduct, dissuade them from illegal actions, or induce them to rectify errors. Effective legal representation requires trust, and trust is built on confidentiality.
But many lawyers worry that prosecutors and regulators want to drive a wedge between attorneys and their clients. "The US government is trying to deputize the private bar into law enforcement," says Brendan Sullivan Jr. …