Testimony of Ramon Mullerat - Proposal for enhancing the concept of lawyers’ duty of client confidentiality in the Model Rules of Professional Conduct - Center for Professional Responsibility

 

American Bar Association
ABA Commission on Evaluation of the Rules of Professional Conduct

"Ethics 2000" Public Hearing

Dallas, Thursday, 10 th February 2000

Testimony of
Ramon Mullerat, O.B.E.
Lawyer of Barcelona and Madrid, Spain
Avocat à la Cour de Paris, France
Honorary Member, Bar Council of England & Wales
Former President of the Council of the Bars and
Law Societies of the European Union (CCBE)
Member of the Academy of Jurisprudence and Legislation of Catalonia
Member of the American Law Institute (ALI)
Member of the American Bar Foundation (ABF)

Proposal for enhancing the concept of lawyers’ duty of client confidentiality in the Model Rules of Professional Conduct

Confidentiality, the cornerstone of the legal profession and society

  1. In general in our civilisation, confidentiality is based on trust and loyalty, such that any breach of confidentiality involves the undue use of this trust – an abuse of trust. There is a general duty to keep secrets entrusted to us and any breach of this trust weakens the principle alterum non laedere.

    Without confidentiality there cannot be trust. This is true both for the legal profession itself and for society in general and has been recognised for hundreds of years.

    In the legal profession ethics are of primary importance, in fact ethics mould the legal profession.

    Of all the ethical values, probably none is more important than the principle of client confidentiality.

    There has to be trust between a lawyer and a client that the former will defend the position of the latter on the basis of full and frank disclosure of information by the client.

    The basis of confidentiality on the part of the lawyer is in the need for the client to have total confidence in his lawyer and to rely on him to handle the matter with which he is charged. In the course of doing so the lawyer becomes privy to a great deal of information from the client and the client will come to rely on the lawyer to protect such information for, among other things, his livelihood, his liberty or even his life.

    Since confidentiality is the basis of the legal profession’s mission and the legal profession’s activity is essential for the administration of justice, lawyer’s confidentiality is thus a crucial basis of the administration of justice.

    Some confidentiality is essential in the administration of justice, it is also essential in all democratic societies.

  2. Confidentiality and the ABA Model Rules of Professional Conduct

The importance of confidentiality is demonstrated by the fact that it is one of the first rights and duties to be mentioned in all legal ethical codes and lawyers’ statutes. The ABA Model Rules of Professional Conduct, i.e. at paragraph [3] of the Preamble. It is the first principle of ethics referred to, stating that

"A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law".

The Model Rules provide for confidentiality at rule 1.6 as follows:

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

  1. to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or
  2. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client."

However, the Model Rules do not contain a basic programmatic principle of confidentiality.

  1. Confidentiality must be defended against attacks
  2. Despite its importance, the principle of confidentiality is constantly coming under increasing attacks throughout the world. Many believe that the principle of confidentiality must yield before other respectable principles. In order to protect transparency in tax matters, in cases involving money laundering, child sex abuse cases as well as in matters involving people’s private lives or where there is a risk of death or bodily injury, lawyers’ confidentiality is often overridden. The Internet, the present means of world-wide communication, also presents potential problems in relation to the disclosure of confidential information.

    We lawyers must defend this primordial right against any attempt to erode it and to prevent the trend which seeks to render it increasingly weaker. We must insist on the need to preserve such principle in the interests of the rule of law in a democratic society.

  3. Confidentiality is a fundamental and primordial right and duty
  4. It is not just the ABA Model Rules which identify confidentiality as a concept of fundamental importance for lawyers and society. The recently revised Code of Conduct of the Council of the Bars and Law Societies (CCBE), at art. 2.3, states that

    "Confidentiality is … a primary and fundamental right and duty of the lawyer."

    When the CCBE Code of Conduct was updated last year, the CCBE considered the confidentiality principle to be of such importance that it was subjected to a study by a working group. The working group in turn made confidentiality the subject of an in-depth study by a subgroup. The primary views of the subgroup were: that exceptions to the confidentiality rule are only to be considered when there are matters of the utmost public interest at stake; that the lawyer’s right and the duty to maintain confidentiality should be considered on an equal footing; that confidentiality is a matter for both the protection of the lawyer and the client; that it applies to information that comes to him in the course of his personal or private capacity; that legislative powers have gone too far and that this is a matter to be taken up at political level.

  5. Globalisation requires convergence of the rules on confidentiality
  6. Today there is a need to harmonise and unify ethical principles, particularly those between the United States and Europe, where cultures in general and lawyers’ cultures in particular are converging.

    Although confidentiality between lawyers and clients is recognised as of primary importance in all legal systems, there are nonetheless differences in how it is applied. For example, in the USA and the UK, confidentiality is a right belonging to the client, who can relieve the lawyer of the corresponding duty of non-disclosure, whereas in the rest of Europe it is an absolute duty to society on which the client has no say. In continental Europe it is the tradition that client confidentiality has to be maintained in the public interest, and not even the clients can waive their right to have their information kept confidential.

    The new smaller world with harmonised business practices requires a harmonisation of the rules of confidentiality and not allow for the weakening of this fundamental principle.

  7. Proposal

I suggest an addition to the Preamble at paragraph [7] along the following lines:

"Such confidentiality is a primordial right and duty of the legal profession, the administration of justice and the democratic system."

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