November 2006

Letters

Bar News welcomes letters from readers. We do not run letters that have been printed in, or are pending before, other legal publications whose readership overlaps ours. Letters should be no more than 250 words in length, and e-mailed to letterstotheeditor@wsba.org or mailed to WSBA, Attn: Letters to the Editor, 2101 Fourth Ave., Ste. 400, Seattle, WA 98121-2330. We reserve the right to edit letters. Bar News does not print anonymous letters, or more than one submission per month from the same contributor.

WA Confidential

Washington’s new “confidentiality” rules for professional conduct are bound to cause trouble. Suppose a divorce client laughs and says, “I’d rather burn the house than let him get half of it.” She is a new client and you have no idea whether arson is “reasonably certain to result” but her “Burning For Peace” t-shirt makes you suspicious.

A mandatory duty of disclosure places counsel in an intractable situation. Counsel becomes judge and jury and makes a finding that his client is guilty of saying something, a “pre-crime” threat perhaps, which must be reported even though nothing has happened, or a finding that it was merely an expression of unhappiness over a property settlement. Disclosing these comments to the opponent would quickly bring a client’s lawsuit for breaching counsel’s duty of confidentiality, among other counts. Not disclosing could result in a disastrous lawsuit against counsel if the threat is not reported and carried out. Counsel has no immunity from liability in either event. So when your client begins to tell her tale, do you immediately notify your malpractice insurer that you may have an “incident” to report?

When does the mandatory duty to disclose begin or end? Does this duty end if the lawyer withdraws from representation? Does it ever end, even after if representation is completed? Does this duty attach to substitute counsel who briefly covers for counsel? If a prisoner calls a lawyer and asks a simple question but implies an ambiguous threat against another, is there a duty to disclose if the lawyer-client relationship is in doubt but the threat is reasonably certain to be carried out? What if corporate fraud is “reasonably certain to result” if only one witness is believed but other witnesses disagree? Is this probable cause to breach the client’s trust in counsel?

I would suggest that there were compelling reasons why the old rule of absolute confidentiality existed from the beginning of the profession, even against the demands of the King of England to know the client’s secrets.

The calling of “lawyer” carries with it certain timeless obligations to the client, and one of those is keeping the client’s secrets at all perils to the lawyer. The “all perils” often meant imprisonment by the Crown, loss of lands and money, and other punishments. This historical duty cannot be swept away by bar rules when confidentiality is at the core of the lawyer’s obligation. Some duties are inherently part of the profession by custom. The 6th Amendment right to counsel was enacted at a time when the tradition of the bar was one of absolute confidentiality, and the Amendment, I think, affirms by implication this right to strict confidentiality.

Phillip Reed, Carlsbad, California