The Confidentiality Fetish

The problem with attorney-client privilege

Last year the former Oklahoma governor Frank Keating resigned as head of a commission appointed to look into the sexual-abuse crisis in the Catholic Church, because some bishops were refusing to provide information the commission requested. Why would the Church, having appointed such a panel, deny it access to relevant information? Because, Keating explained, the uncooperative bishops had "turned to their lawyers when they should have looked into their hearts." Although most Catholics favor "transparency" in this crisis, another commission member explained, "the attorneys for a diocese do not think that way."

This is an all too familiar refrain in American public life. The captain of the Staten Island ferry that crashed into a pier in October of last year, killing ten people, wouldn't tell investigators where he had been at the time of the crash—his lawyer wouldn't let him. At about the same time, in Palo Alto, California, a teenage girl involved in a bizarre hit-and-run accident that killed a small child received a surprisingly harsh sentence. The victim's family had urged severity after repeatedly expressing bitterness at the girl's failure to apologize to them. Her lawyers had advised her not to. After he was forced to admit his involvement with Monica Lewinsky, Bill Clinton earned further opprobrium by refusing—most likely on the recommendation of his lawyers—to concede that he had earlier lied about Monica during the Paula Jones case.

Even people with little reason to fear liability turn to lawyers to vet their public statements. Anita Hill, herself a lawyer, appeared at Clarence Thomas's confirmation hearings with a battery of lawyers—even though her role was simply to give a straightforward account of events she had witnessed, with no prospect of ensuing litigation. Sherron Watkins, the Enron accountant who confronted Kenneth Lay face-to-face at a time when many of her peers were afraid to do so, often spoke to the media through a lawyer after she became famous.

Lawyers, in short, have carved out a role for themselves as the privileged keepers of much information that is important to the public interest. Historically, lawyers have liked to think of themselves as defenders of individual liberty against an overbearing state, primarily through traditional advocacy—that is, persuasively asserting a client's rights. Today, however, lawyers' typical efforts to mediate between clients and the state rely less on advocacy and more on information control. This is a disturbing development; lawyers have brought to their new role as information guardians a powerful predisposition toward needless secrecy that suppresses and distorts information about many matters of public importance.

Never say anything to the police without talking to a lawyer first. Never volunteer anything in a deposition. Never try to explain or apologize when you are in an accident. Don't talk to anyone about your civil case. These canonical precepts serve to maximize the profession's influence. Lawyers are excessively prone to advise confidentiality for the same reason that surgeons are excessively prone to advise surgery. Confidentiality puts a premium on services and protections that lawyers are distinctively qualified to provide.

Dependence on lawyers often impedes responsible or humane behavior. It also has tangible costs for some clients. The Palo Alto teenager would probably have been better off if she had been more candid about her wrongdoing. So, for that matter, would Bill Clinton. Candor might have created more sympathy for the teenager at her sentencing hearing, and it might have eased the political pressure on the President.

In a world that increasingly seeks transparency in government and business, the legal profession stands out for its frankly uncompromising commitment to opacity. Supreme Court Justice Louis Brandeis's principle that "sunlight" is the "best of disinfectants" is a major influence on contemporary public policy nearly everywhere except in his own profession.

The bar's commitment to confidentiality is not just an ideology; it is also a marketing strategy. In the bar's competition with other professions, confidentiality is often a more important advantage than legal expertise. Many accountants can give better advice than most lawyers about what belongs on a tax return; and one needs an engineer to draft some reports that are required by environmental laws. But lawyers can give clients something that other professionals, with the exception of doctors and priests, cannot: strong confidentiality rights. Although the legal system routinely requires accountants, bankers, and business consultants to disclose ostensibly private communications with their clients, attorney-client privilege protects most communication between lawyers and their clients from involuntary revelation.

This principle got a boost from the Supreme Court's 1981 decision in Upjohn v. United States. Upjohn involved an investigation by a lawyer at the pharmaceutical company of an allegation that middle managers had bribed foreign government officials. When the Internal Revenue Service subpoenaed the lawyer's files, the Court ruled that they were privileged. In the years since Upjohn was decided, corporate investigations have become a big business, and lawyers have acquired a virtual monopoly over it.

Tobacco-company lawyers further tested the limits of confidentiality when they persuaded their clients to give them responsibility for much of the companies' research on the health effects of smoking. The lawyers reasoned that since health effects were central to many product-liability suits against the companies, the research facilitated legal advice, and hence should be privileged. If the results looked good, the studies were shifted away from the lawyers and made public. If they looked bad, the lawyers invoked privilege. Some courts rejected this strategy as an abuse of privilege, but it is hard to distinguish from the more routine practice, encouraged by Upjohn, of using lawyers to investigate allegations of wrongdoing.

A recent move to tighten financial-disclosure requirements for public companies—the Sarbanes-Oxley Act, passed by Congress in reaction to the Enron scandal and other corporate infractions—has increased the demand for lawyers even more. Although the reporting that Sarbanes-Oxley calls for is financial, lawyers, rather than accountants, determine what is to be disclosed. Anxious about the expanded liability the statute imposes, executives would rather talk to lawyers than to accountants or consultants, because lawyers confer greater confidentiality. When board meetings address sensitive issues these days, the directors frequently ask nonlegal advisers to leave the room.

The bar is currently fighting a proposal by the Securities and Exchange Commission that would require a corporation to report to the commission if one of its lawyers withdraws because the corporation persists in conduct the lawyer has advised is illegal. The bar argues that such a "noisy withdrawal," by signaling the lawyer's knowledge of wrongdoing, would effectively disclose the communications that prompted it. Noisy withdrawal is a long-standing requirement for accountants. But lawyers have so far been successful in blocking its application to themselves.

Of course, most business and professional relations involve confidentiality. In most dealings, however, the law requires that confidentiality yield to stronger public or third-party interests. Yet the bar often insists that attorney-client confidentiality be preserved at the expense of even the weightiest competing interests. Suppose—to take a case studied in law-school ethics classes—that a now deceased client once confessed to his lawyer that he had committed a crime of which someone else has just been convicted. May the lawyer disclose the confession in order to save the wrongfully convicted person? The stakes for the convicted person are enormous; the stakes for the deceased client are nil. Nevertheless, the Arizona Supreme Court once held in a similar case that disclosure is prohibited. The American Bar Association recently revised its position on confidentiality to permit disclosure in situations like this; but most jurisdictions still follow the rule applied in the Arizona case.

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