http://abcnews.go.com/wire/US/reuters20030812_363.html
IMO about time...I think once a lawyer has advise laws a being broken and a CEO or board of directors continue the lawyer needs to report it...

So much for "zealous advocacy" on behalf of the client, confidentiality...

Hia GatorJamie
By So much for "zealous advocacy" on behalf of the client, confidentiality... are you against this? if so why? I am not challenging you on this I really would like to under way

This is extremely wrong for so many reasons. How can you earn the trust of your client when you can tattle on them at will? We as attorneys have a duty to keep client information confidential. This is in complete conflict with that duty. And this permissive, aspirational goal probably would be turned into a duty that is wholly in conflict. The idea is that with a client being able to have trust in our complete confidentiality, the client can be given the best advice on how to address the situation with which it is confronted. (And the in-house attorney for a corporation is still an attorney, with the corporate employer still being the client.)

Just another example of the growing disconnect between the needs of the lawyering profession and the political agenda of the American Bar Association (of which I am proudly not a member).

Charlie in the trees, please forgive me as I am not in your field, so could you please educate me on why if the lawyers knew of what was going on at say Enron they should not have come forward?
I really look forward to learning more about this...

Let's put this in a context less gray. Let's say I'm representing an accused criminal. He confesses to me - his attorney - that he committed the crime. I tell him that, well, maybe we should plea bargain and try to get a light sentence that way. He says he wants to fight it. Do I have a right to go to the police and say: "hey, so and so just committed a murder/rape/robbery, he confessed to me, he's not willing to plead guilty, so me, as attorney, will testify against him to get this scum off the streets"?

We, as a society, long ago made the decision that, no, I cannot do that. As an attorney, I have no right to do that. Accused criminal defendants have the right to a fair trial and fearing that their attorney will rat on them is inconsistent with that right. We think that the societal good of an accused defendant being able to freely prepare for his defense with his attorney (and he does have a constitutional right to an attorney) outweighs the transitory benefit of an attorney turning state's evidence.

So what does this have to do with corporate scum like Enron? The parallel is exact, since Enron, or Adelphia, or IMClone, or whoever, is also accused of criminal wrongdoing. The accused should be able to prepare for its defense without fear that the attorney will turn state's evidence, because that's a denial of the fundamental right to counsel. Well, you could argue, and I'm sure the ABA thought this way: a corporation is not a person. But a person - a corporate executive - could go to jail and that person has the same constitutional rights as the street thug in the prior example.

Does this explain it? Let's use the Kobe Bryant example. let's say I'm his lawyer. He's been accused of rape. His defense: consentual sex. He should be able to freely tell his story to his attorney without his attorney thinking: "You know what? That doesn't sound like consent. I better run to the cops." And, under our system, he doesn't have that fear. An Enron exec, or Martha Stewart and her buddy at IMClone, shouldn't have any less legal rights.

I agree with the logic above whole heartedly.

The example you give is for a crime/accusation that occurred in the past. Does the same argument apply to present or future actions? In the Enron case did the lawyers know what was going on before it happened or only after?

If a lawyer knows a crime is going to be committed, is lawyer obligated or barred from whistleblowing? What if it is a crime that is currently being committed?
In my mind, I see a difference between past actions and current actions. What does the law say?

(I am very much enjoying this thread)

Charlie in the trees,, Thank you. I guess I was also thinking of Enron as a non person. I understand where you are coming from and see your point(s) as valid. I just have more more question. Lets say that after the first crime is comitted, the lawyer knows that a second crime is about to be comitted or the crime is on going. At that point is there any moral or legal requirements on the lawyer? or should there be?

However, there ARE statutes that prohibit a lawyer from intentionally lying in court (which, no matter who says it, is still perjury), so it is USUALLY in the best interests of a potentially successful defense for the attorney to know only the most favorable evidence outside what is discoverable. So, if a client commited a crime but there is no discoverable evidence to support the accusation beyond what the prosecution unearthed though reasonable and lawful evidence collection, then the attorney should never allow his/her client to confess the crime to him/her.

The ABA decision seems to have simply expanded the idea of an attorney not subborning perjury, but I agree wholeheartedly that their making this expansion was a terribly bad idea. I am as distrustful of big businesses as any good liberal, but lifting the attorney-client confidentiality safeguads would undermine much of what lawyers are there to protect.

If the lawyer knows that a second crime is going to be committed, I think he is still ethically obligated to keep quiet (after all, who knows for certain that the proposed crime actually will be perpetrated?). However, the place where, I think, most state bars draw the line is this: another person has been isolated by the accused criminal (e.g., buried alive with limited oxygen, or chained to a wall in a cabin the wilderness with limited food) and the lawyer's disclosure will prevent certain death.

The notion about the lawyer not suborning perjury is the reason why the ethical criminal defense attorney (not an oxymoron) never puts on the witness stand a client that he knows to be guilty.

[ August 12, 2003, 01:25 PM: Message edited by: Charlie in the Trees ]

OK, thanks!
Is there a book or source of information you would recomend to a lay person such as myself to get a grasp on the legal system? After reading your posts I see I am lacking in a fundemental understanding...

Interesting to note that the U.S. Supreme Court "granted" personhood to corporations via an 1886 decision, Santa Clara County v. Southern Pacific. The Court was not overly specific in its language, but the Santa Clara case culminated years of decisions that coalesced corporations into legal persons, granting them rights even many humans do not possess.

Our Founders were not in favor of this. Indeed, Thomas Jefferson himself believed corporations, while beneficial, should never be looked upon as entities deserving of the same protections as American citizens.

If I knew of such a book, I'd make every other lawyer (and most our judges) here in Nevada read it. wink

Too bad I ( as I suspect too mant Americans) get my ideas about the legal system from Law and Order and CSI...

But Charlie in the Trees - and I will be using you as our resident expert until another lawyer(s) comes along - certainly the lawyer has an obligation to advise his/her client when certain behavior may be illegal - and advise them against it. So I assume you are okay with the upper management part of the ABA's policy - just not the outside person part (which I also agree is horrendous policy - but at least they are not forcing the lawyer to report).

Also, on the subject of a client who one knows is guilty - would it also be unethical (and could the state bar act on it) for a defense lawyer to knowingly introduce evidence that implies the client's innocence, even though the client has confessed? My question is basically about where the limits of confidentiality and ethics are here. I was always under the impression that all lawyers, whether representing the state, an individual or a corporation, had a primary duty to society as a member of the bar. Therefore prosecutors likewise cannot send those they know to be innocent (but appear guilty because of the evidence) to prison.

CPT_Doom-

You are mistaking the English tradition of "the bar" with the American legal tradition in which the Constitution protects the accused. A lawyer (via both case law and statute) is required to zealously and ethincally defend his/her client. They cannot lie, cheat, or steal as a member of the bar, but as the representative of a client, they owe their faculty to him. American lawyers have their loyalty tied to two different institutions.

So, I suppose the ABA is working within its jurisdiction, but I believe firmly that attorney-cliet priviledge is an important safeguard against governmental control.

If a lawyer can condemn a guilty client, then surely he can condemn an innocent client with much the same result.

Going through your post point by point, CPT:

But Charlie in the Trees - and I will be using you as our resident expert until another lawyer(s) comes along
Thank you, although we have other lawyers who post here. GatorJamie, for one. MIB, for another. And I would definitely welcome their input as we veer into criminal law, which is not my bailiwick.

- certainly the lawyer has an obligation to advise his/her client when certain behavior may be illegal - and advise them against it.
Absolutely. It's malpractice not to.

So I assume you are okay with the upper management part of the ABA's policy - just not the outside person part (which I also agree is horrendous policy - but at least they are not forcing the lawyer to report).
The in-house lawyer definitely should report wrongdoing to upper management. That's what they're getting paid to do. And if he/she is fired for telling upper management something they'd rather not here, ironically the in-house lawyer would not get whistleblower protection, because, under whistleblower laws as I understand them, you have to report the wrongdoing to an outsider to get their protections. So I understand the motivation behind the ABA policy change, but I think attorneys have a higher duty (as members of the bar) to their clients, over and above their own self-preservation. Even if the penalty is being fired.

Also, on the subject of a client who one knows is guilty - would it also be unethical (and could the state bar act on it) for a defense lawyer to knowingly introduce evidence that implies the client's innocence, even though the client has confessed?
Happens every single day in every single courtroom in America. The ethics rules are willfully silent on this. The idea is that, under the adversarial system, the truth will emerge from each side vigorously presenting their position. I actually saw an excellent discussion on this very point on the Greta Show on FoxNews, when they were talking about the Scott Peterson case and some of the defense ideas being floated. I know a lot of folks have a problem with the politics of Fox, but Greta and her four semi-regular panelists actually are the probably the best forum on TV for open discussions of lawyering and trial tactics. You know who is consistently her best, most interesting panelist (and, not incidentally, the one I seem to agree with the most)? Geoffrey Feiger. Jack Krevorkian's lawyer. Ran for Michigan governor a few years ago. Brother of Doug Feiger, leader of The Knack. Some network should give Feiger his own show.

My question is basically about where the limits of confidentiality and ethics are here. I was always under the impression that all lawyers, whether representing the state, an individual or a corporation, had a primary duty to society as a member of the bar.
Nope. Primary duty is to the client under our adversarial system.

Therefore prosecutors likewise cannot send those they know to be innocent (but appear guilty because of the evidence) to prison.
There are special ethical rules in most jurisdictions addressing the issue of prosecutors. They are held to a higher ethical standard in most places, I guess because the client is the government and the government has a dual interest in both winning the case, and not sending an innocent person to prison.

The more I think about this, the more I question the motivation of the ABA. In-house attorneys have this ability to report wrongdoing to outsiders. It's not yet a duty, only an option. However, if the dirty corporation hires outside counsel, the outside counsel cannot "blow the whistle"; it cannot report the wrongdoing to outsiders. Private law firms have become outrageously expensive over the last 20 years. To save money on legal staff, most corporations have beefed up their internal legal staffs. This is costing the big law firms real money.

So now the ABA passes a rule that Corporate America cannot be assured of the continued confidentiality of their in-house legal staff. Yet, they can rest assured of the continued confidentiality of the very expensive private law firms to whom they pay rates that could easily soar above $400 an hour (which is a lot more than they pay lowly in-house counsel per hour). Gee, I wonder if Corporate America might be tempted to use outside counsel less and cut back on the cheaper in-house staff.

[ August 13, 2003, 08:09 AM: Message edited by: Charlie in the Trees ]

Been too swamped at work (pun intended wink ) to respond in great detail here, but I'll ditto everything CITT says on this. I also question the ABA's motivation, as this appears to be another example of being beholden to the mega-firms.

gj