COMMENTS ON PROPOSED RULE 1.6
(Confidentiality of Information)
Submitted to the Ethics 2000 Commission, American Bar Association
by John A. Humbach
I commend and strongly urge the adoption of the modifications to Rule 1.6 that are proposed in the Public Discussion Draft of March 23, 2000. The proposed changes are much needed. One further change, however, is also needed. Although lawyer-client confidentiality provides important public benefits, there are also significant detriments that can flow from its misuse. While preserving the benefits of confidentiality, there is at the same time a need to address and prevent the detriments that can occur. In this regard, I recommend adding a new paragraph (d) to Rule 1.6, as follows:
(d) It is an abuse of confidentiality for a lawyer, in any proceeding or matter, to pursue a strategy or design of selectively revealing information when the lawyer has or claims a duty to conceal other information without which the revealed information would be misleading or deceptive on any issue of material fact.
The purpose of this proposed new paragraph is to expressly prohibit lawyers from misusing confidentiality as a part of deliberate strategies of partial-truth advocacy. "Partial-truth advocacy" means any form of advocacy that is intended to distract from or obfuscate the material facts of a matter, or to cause others to form erroneous conclusions about such facts, by affirmatively stressing part of the truth while asserting a duty to hide other parts of the truth. The proposed new paragraph would declare that lawyers have a professional obligation to refrain from knowingly pressing or advancing half-truths in the representation of clients.
Calculated non-disclosures and selective partial disclosures can predictably lead to false understandings in the minds of others. The use of such tactics in bargaining or litigation goes beyond the intended purpose of the rule of confidentiality stated in Rule 1.6. It illegitimately transmutes confidentiality from a shield to a sword. Stated differently, confidentiality should carry with it not merely rights but duties. In particular, a lawyer who stands behind the shield of confidentiality should not, at the same time, deliberately seek to portray incomplete pictures of reality that the lawyer reasonably knows will mislead others. A lawyer has, in short, a duty to refrain doing anything to create misunderstandings that the duty of confidentiality would prevent the lawyer from correcting.
Confidentiality is, for many practical reasons, a crucial component of the lawyer-client relationship. The rule of confidentiality is not, however, an unalloyed benefit to clients, the profession or the system of justice. There is a definite downside every time a lawyer claims an ethical duty to conceal some key part of the truth. The major downside is, of course, that the rule of confidentiality causes otherwise "available" and material information to be withheld from persons who need it to make informed judgments in private matters and to carry out justice in accordance with the law. Despite the very important objectives that justify confidentiality, its use must therefore be kept in careful balance with the needs of justice, which depends on truth. When truth will bring a client unpleasant consequences, there is obviously a temptation to disguise or conceal. But the law can only apply to the facts that are before it. If the facts are distorted by partial truths, so will be the application of the law, and justice will founder.
These negative effects are not, moreover, confined to miscarriages of justice in individual cases. The misuse by lawyers of the rule of confidentiality is no doubt partly responsible for the deep-seated wariness and apprehension that the public feels toward lawyers, for the idea that lawyers deal regularly in half-truths, all too often having something up their sleeves. Many surveys have shown that, unfortunately for the profession and the whole justice system, there is a widespread public impression that lawyers cannot be fundamentally trusted. The misuse of confidentiality may sometimes work to the advantage of certain clients, but the advantage is purchased at a high cost. When lawyers misuse confidentiality and deal in partial truths they reduce their credibility overall, a detriment to all of the lawyers' clients. When justice is in the hands of professionals whose full and unstinting fidelity to truth is a matter of not merely of doubt but abundant grim humor, the effect can hardly strengthen public trust in the rule of law.
The Model Rules should clearly reflect that the proper purpose of confidentiality is not to obstruct the truth; that is only a regrettable by-product. The proper role of the rule of confidentiality to shield the client, so the client can be open with his or her lawyer without fear that the lawyer might later step forward to bear witness for the adversary. When, however, a lawyer deliberately adopts and pursues a strategy of partial truth advocacy, of presenting certain evidence while selectively withholding other material evidence, the rule of confidentiality is not merely a shield but has become, instead, a tool of attack. It becomes a device or scheme to distort, deceive and obstruct.
Obstruction is precisely what occurs when a lawyer zealously urges the existence of certain facts while willfully concealing other facts that the lawyer reasonably knows are needed to avoid fostering false or erroneous inferences. Whether the lawyer's immediate purpose is merely to distract from the truth or to distort it, the ultimate goal is the same: to prevent the substance of applicable laws from applying to the facts that actually occurred--to derail the rule of law.
As long as people do not find it easy to trust the lawyers who administer the justice system, they will never find it possible to fully trust the system as a whole, and the distrust of lawyers runs deep. It is a question of honesty. Here I do not mean merely "honesty" in the cramped and narrow sense that lawyers define the term ("no outright lies") but in the more expansive sense that the word generally has among the public at large. In this broader sense, an honest person means someone who takes care never to mislead other people. It means a person who does not make it a practice to deliberately hold back crucially pertinent information while trying to persuade others. Foremost, an honest person means one who regards responsibility for the full and complete truth to be the personal responsibility of each and every individual, not as just the collective responsibility of some larger "system."
By contrast, the lawyer's standard of honesty under Rule 1.6 is not nearly as exacting as the general public standard: The assumption behind Rule 1.6 seems to be that the full and open truth is not the personal responsibility of anybody in particular, certainly not of individual practitioners, but only of the justice system as a whole--a system in which the players may do what they can, short of crime or outright lies, to encourage whichever misconceptions happen to serve their cause. Although ethical lawyers do not lie or help their clients to lie, the lawyer has a far more subtle art. By carefully choosing what to disclose and conceal, the lawyer's art is to weave stories that are false out of statements that are true.
By purposely withholding information or willfully undermining accurate but "damaging" evidence, lawyers can frequently cause jurors and others to form misleading impressions of their clients and past events. Most lawyers would probably assert, moreover, that it is not merely the right but the duty of lawyers to bend portrayals of the truth to their client's advantage, even if that means inducing others to fall into mistaken beliefs. When a business client does not want to reveal the whole story in negotiating a deal, it is not the lawyer's job to disturb the false impressions the other side forms as a result. If a guilty client wants to say "I didn't do it," then that client's non-guilt is the picture of reality the lawyer is expected to convey. In effect, lawyers often encourage others to form conceptions of reality that do not even purport to correspond to the actual facts as either the lawyer or the client honestly sees them.
All of this is done, to be sure, with generally high objectives. There are obviously important values other than truth, and most lawyers surely believe that the false impressions they may convey are in pursuit of those values. However, those values do not include a "right" to obtain legal advantages that are not merited under the actual facts of a case or to avoid legal disadvantages that the law would prescribe if the full truth were revealed. When lawyers succeed in conveying false impressions in the pursuit of unmerited legal advantages or to protect their clients from legal accountability, people feel that justice has been not merely deceived but cheated. And for many outside the profession, that is a problem.
It is not enough to say, in response to these concerns, that "no human system can be perfect." By tolerating misuse of the rule of confidentiality in partial-truth advocacy, the present Rule 1.6 allows the imperfections to be built right into the process, and the public has no trouble seeing this. Almost everyone suspects that the very reason many clients seek legal counsel is to avoid unpleasant consequences of the law--stated bluntly, to avoid the intent of the law. Some people simply do not want the results that the law provides for the actual facts of their case. The person who has committed a crime does not want to go to jail. The person who finds a contract burdensome does not want to pay damages for breach. The person who suffers a minor, transitory injury may not want to be limited to only a nominal judgment. People think that, with a smart lawyer, one who is able to deal skillfully with the facts, these kinds of "undesired" legal results can be avoided, legally, under the system that we have. And they are right.
Such efforts at avoidance come, however, at a cost. When lawyers fiddle the facts to dodge the brunt of the law, it is more than just a clever private victory. It is a major impediment to the proper functioning of the justice system itself. If the law's substantive rules provide for "justice," then any bending of the facts to avoid those rules must tend to frustrate justice itself. The system's premises of "government by law" are derailed when lawyers' selective disclosures sway the outcomes that people get. The public perceives that these effects occur, and the poor reputation of the justice system is at least in part because the public does not care for the result.
The problem of inadequate public trust in lawyers is not, therefore, a minor tangential annoyance or merely the problem of an insular profession, but it is one that cuts to the heart of the public's basic civic faith in the rule of law. For better or worse, most people probably think the core ideal of justice can only be served if the law applies to the events that actually occur. The concept of "right" is seen as based on truth, and not merely a matter of who wins regulated competitions to reinvent the past. People expect the law to provide genuinely deserved results not just "due" process.
As long as lawyers in negotiations and advocacy do not even purport to present the full and objective truth as they or their clients honestly see it, no amount of professed concern about values "other than truth" is going to change the declining esteem in which the public holds our profession and the system of justice it maintains and serves.
The challenge of achieving a balance between the practical goals of confidentiality and the truth needs of justice seems particularly pointed in the case of criminal defense. The notion seems to be that an accused does not receive a zealous defense unless he receives an exoneration defense. In fact, however, few defendants are exonerated anyway; most bargain for pleas.
Indeed, there does not appear to be any empirical evidence that criminal defendants would be worse off on the whole if defense lawyers unqualifiedly swore off strategies founded on selective non-disclosure and partial-truth advocacy. Innocent defendants (presumably the ones we are most concerned not to convict) would probably be generally better off--if represented by lawyers whose reputations for probity were beyond reproach.
When Chief Justice Earl Warren was a California county prosecutor, he and the public defender developed a relationship of trust that apparently worked to the considerable advantage of the innocent accused. Warren told the public defender that any time he was convinced Warren was prosecuting an innocent person, he should tell Warren so. Then, according to the defender, Warren "would let me look at his files and, if that didn't change my mind, Warren would not prosecute. He trusted me to be as honest with him as he was with me." Leo Kratcher, Earl Warren: A Political Biography 57 (1967).
What lawyers sometimes seem to forget is that if criminal defense lawyers are none too trustworthy in their manner of defense, it does none of their clients a service. A person who makes himself generally not believable is one who will not be believed.
For guilty defendants, of course, a believable lawyer may not always be better. In particular, having a lawyer who will not pretend controversy means you cannot put on an exoneration defense unless you can successfully bamboozle your own lawyer. This would present a clear drawback for guilty defendants who want to pretend innocence in the hope of getting an unmerited reduction of charge, dismissal or decision not to prosecute. If they tell their honest lawyers the truth the game is up. By lying, however, they take substantial risks, depriving their lawyers of the truthful information the lawyer may need to get the best deal and minimize penal consequences.
Even if this is so, however, it is still not a sound reason for lawyers to try to get judges and juries to swallow versions of past events that they should know are not true. In a world of honest men and women, the scoundrel may be at a disadvantage, but that does not mean honest people should make themselves scoundrels in order to compensate. Lawyers should not dishonestly withhold information, pretend controversy or distract from truth just so the guilty can have the aid of counsel to assert a false defense.
Still, it may be objected, there is the Constitution. It secures both a right to effective counsel and a right to make the government prove its case. Thus, unless lawyers are willing to pretend their guilty clients' innocence even when they know the facts, clients will be forced to make an unconstitutional choice: They will forced to choose between their constitutional right to effective counsel and their constitutional right to put the government to its proof.
Putting the matter like this, however, overstates the case. There is no suggestion that the rules against involuntary self-incrimination or the requirement of proof beyond a reasonable doubt should not continue to apply in all their force. The only suggestion is that a defendant who wants to controvert the government's case would be expected to do so truthfully. Cf. Nix v. Whiteside, 475 U.S. 157 (1986). The defendant would not have a "right" merely to pretend controversy, presenting misleading evidence or disparaging accurate proof in the hope that some undeserved advantage might emerge. The Supreme Court has never held the Constitution to require more than this.
When all is said and done, it cannot be denied that it would probably be harmful to some criminal defendants if all lawyers eschewed all partial-truth advocacy and fabricated controversy. It is, however, equally likely that such a change would be to the advantage of other defendants, especially the innocent and those who are "not-guilty-as-charged." These latter classes of defendants would almost certainly be better off is their lawyers' presentations could be more readily believed.
For better or worse, recent developments in federal law suggest that the defense lawyer's duties of candor and full disclosure may, at least in federal prosecutions, already be much broader than typically thought today. Consider, for example, the lawyer's obligations under 18 U.S.C. § 1001, as amended by the False Statements Accountability Act of 1996:
§ 1001. Statements or entries generally
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully--
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title or imprisoned not more than 5 years, or both.
(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.
* * *
18 U.S.C. § 1001 (emphasis added).
Notably, § 1001 can apply to any out of court statement in any federal proceeding. Consequently, if a federal prosecutor wants to find out what a defense attorney knows about the facts of a client's case, all that the prosecutor needs to do, it seems, is to ask, with appropriately probing questions. The defense attorney could of course claim privilege and refuse to respond but, if the attorney has a truthful answer that would work favorably for the client, then a refusal to answer promptly could easily harm the client's interest--say, in subsequent plea bargaining. The delayed answer might seem too much like a concocted story when offered up at a later date. Anyway, defense attorneys are ordinarily eager to share exculpatory facts with the prosecution and, indeed, if the defense attorney has a response that would help the client, there would likely be a duty to answer. See Rule 1.1 (Competence). That being so, the attorney's claim of privilege would be eloquent in itself, an implicit revelation of the unfavorable or "damaging" information whose existence the prosecutor seeks to confirm. By carefully framing the questions put to defense attorneys, a prosecutor could easily gain at least enough such revelations to shatter a potential plea-bargain or, if the attorney's "admissions" got to the jurors, to prevent an acquittal.
Unfortunately, the boxed-in defense attorney has little room to maneuver under § 1001. If the attorney attempts to maintain confidentiality by deflection or other verbal ploys implying lack of knowledge ("I don't know") or by "exculpatory no"-type responses, he or she runs the risk of committing a federal felony under § 1001. See Brogan v. United States, 118 S.Ct. 805 (1998). The statutory language of § 1001 is very broadly worded in prohibiting such verbal ploys ("conceals, or covers up by any trick, scheme, or device"; emphasis added). For its part, the Supreme Court has cast doubt on the possibility that there are any implicit exceptions in § 1001, expressly rejecting the argument (in relation to § 1001) that "the Court may interpret a criminal statute more narrowly than it is written." Id. at 810.
In short, unless the Supreme Court "finds" an unwritten exception in § 1001 in some future case, the federal defense attorney's ethical duty of confidentiality may already be, in effect, subject to and limited by a duty not to "conceal" or "cover up," imposed by federal law. There is, of course, the constitutional right to counsel, but that right does not include the right to do any thing that would constitute "violating the law," Nix v. Whiteside, 475 U.S. 157, 166 (1986), and § 1001 is manifestly a law. The only way it might not be "law" is if Congress does not have the constitutional power to modify the extant contours of lawyer-client confidentiality, as we have come to know them. If not, then § 1001, as applied to lawyers, is unconstitutional. While there is some authority that there may be a degree of sixth amendment right-to-counsel protection for the attorney-client privilege, Neku v. United States, 620 A.2d 259, 262 (D.C. 1993), there is no reason at this point to think today's Supreme Court will hold that the current balance between the rule of confidentiality and the truth needs of justice is written in constitutional stone. See, e.g., Fisher v. United States, 425 U.S. 391, 403 (1976) (stating that the attorney-client privilege applies only where "necessary to achieve its purpose"). Indeed, it is not even clear that Proposed Rule 1.6 would present a justiciable conflict with § 1001; paragraph (c) of the proposed rule expressly echoes and reinforces the requirement that attorneys reveal confidential information "to the extent required by law."
The justice system seeks to influence human behavior by providing various legal advantages and imposing various liabilities whose application depends for the most part on the things that people do. Many times people will see it as personally desirable to seek a legal advantage that is not merited under the law or to avoid a liability that is called for by the law, given the facts of their own particular situation. One effective way to do this is to keep the actual facts of past events obscure. With a lawyer who manipulates the facts, a client can escape the intent of the law.
The rule of confidentiality plays a major role in lawyers' efforts to lead the law to misapply. Although as a shield confidentiality performs a valuable service, when used as a sword it enables advocates to mislead by means of calculated partial disclosures and to fabricate controversy as a strategy to skirt the rule of law.
In order to strengthen the public's confidence in the justice system we must make it easier than it is now for the public to trust the lawyers who are its custodians. It should be an abuse of confidentiality for lawyers to selectively portray reality in betrayal of that trust.