David Dow - The Autobiography of an Execution

Both the attorney-client privilege and the duty of confidentiality are driven by two essential considerations: (1) promoting candor and honesty within the attorney-client relationship [7] See Swidler & Berlin , 524 U.S. at 403 (“The privilege is intended to encourage ‘full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice’ ” [quoting Upjohn Co. v. United States , 449 U.S. 383 (1981)]); MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. [2] (2008) (explaining that ethical duty of confidentiality encourages clients to speak “fully and frankly” with their lawyers, “even as to embarrassing or legally damaging subject matter”). and (2) maintaining an appearance of loyalty. [8] See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. [2] (2008) (describing trust as “hallmark” of attorney-client relationship). When clients speak to their lawyers, it is desirable for clients to be as open and honest with counsel as possible, and these rules further that degree of openness. Good legal representation is facilitated by the lawyer’s knowing everything that the client knows, even if those things may be embarrasing or could be potentially harmful to the client or others. [9] See Upjohn Co. , 449 U.S. at 390–91 (explaining importance of attorney-client privilege in enabling attorney to know all facts that client knows in order to determine what is legally relevant [citing MODEL CODE PROF’L RESPONSIBILITY EC 4-1 (1983)]). In an effort to ensure that a client feels safe in disclosing all the lawyer may need to know, the law protects virtually all the communication between the lawyer and the client (as long as the communication occurred in the context of the attorney-client relationship).

In some circumstances, the privilege or duty of confidentiality may yield and permit the attorney to reveal otherwise confidential information. So, for example, when revealing confidential information may prevent the client from committing a future crime, an attorney is permitted to reveal that information. [10] See, e.g., United States v. Zolin , 491 U.S. 554, 562–63 (1989) (describing purpose of crime-fraud exception to attorney-client privilege as preventing client from communicating with lawyer for purpose of obtaining advice for commission of future crime or fraud). Similarly, when the attorney’s revelation of confidential information may prevent reasonably certain death or bodily harm to another, the attorney is permitted to reveal confidential information. [11] See MODEL RULES OF PROF’L CONDUCT R. 1.6(b)(1) (2008). The most recently recognized exceptions to the duty of confidentiality allow for disclosure of confidential information in order to prevent a client from committing a financial or economic fraud. [12] See MODEL RULES OF PROF’L CONDUCT R. 1.6(b)(2) & (3) (2008) (adopted in August 2003). These exceptions have only recently been enacted, in response to the Enron scandal and other corporate abuses in which it was suspected that attorneys’ revelation of confidential information might have prevented vast financial ruin to thousands of people, had the revelation been allowed.

The ethical rules constraining lawyers rest on the belief that frank conversation between a lawyer and clients is aided when clients can be confident that the conversations they have with their lawyers will never be used to embarrass or injure them. [13] See Swidler & Berlin , 524 U.S. at 407 (explaining that clients concerned about reputation, civil liability, or possible harm to friends or family are more willing to be frank with their attorneys because of the attorney-client privilege). Therefore, we assure clients that all communication with their lawyers relating to legal representation will be kept secret forever, unless they consent to disclosure. If a client dies without consenting to the disclosure of confidential information, a lawyer is bound to keep that information secret forever. [14] See id . at 410 (“It has been generally, if not universally, accepted… that the attorney-client privilege survives the death of the client”).

An additional concern driving confidentiality rules is based on principles of agency law. [15] See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. [2] (2008) (describing duty of confidentiality as contributing “to the trust that is the hallmark of the client-lawyer relationship”). A lawyer is the client’s agent. She stands as one with her client, helping the client navigate through the complexities of the legal system. The lawyer is to be her client’s advocate and counselor, single-mindedly devoted to her client. Talking to others unnecessarily about her client’s affairs evokes images of disloyalty. To keep secrets inviolate indefinitely is to be at one with the client, to show the utmost loyalty, whether to a current or former client. The ethical obligation to maintain client confidences concerns this appearance of loyalty, as do other ethics rules, such as the rules governing conflicts of interest. [16] See, e.g., MODEL RULES OF PROF’L CONDUCT R. 1.7 (governing concurrent conflicts of interest) & 1.9 (governing successive conflicts of interest). Keeping a client’s secrets until told to do otherwise is part of being loyal, even if keeping the secrets means exhibiting that loyalty beyond the client’s grave. [17] See Swidler & Berlin , 524 U.S. at 408 (recognizing potential loss of evidence due to privilege, but justifying the loss by explaining that without privilege, “the client may not have made such communications in the first place” so the “loss of evidence is more apparent than real”).

Not being able to talk to family or friends, not even to a spouse, about a large part of one’s life—the details of one’s workdays—can exact a heavy toll on lawyers. Perhaps keeping clients’ secrets—particularly where the stakes are very high or the secrets are dark—helps explain the high incidence of depression, substance abuse, and suicide within the legal community, one of the highest rates among those of all professions. [18] See generally Laura Rothstein, Law Students and Lawyers with Mental Health and Substance Abuse Problems: Protecting the Public and Individual, 69 U. PITT. L. REV. 531 (2008) (explaining that rates of depression and substance abuse are much higher than those of general population); Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 VAND. L. REV. 871 (1999) (discussing high rate of depression, mental health issues, and substance abuse within legal profession).

Consider the recent story of attorneys Dale Coventry and Jamie Kunz. More than twenty-five years ago, Coventry and Kunz, Cook County public defenders, were assigned to represent Andrew Wilson against murder charges. [19] See Maurice Possley, Inmate’s Freedom May Hinge on Secret Kept for 26 Years, CHI. TRIB., Jan. 19, 2008. During that representation, Wilson confessed to his lawyers that he had robbed and murdered a security guard at a McDonald’s restaurant in January 1982, a crime for which another man, Alton Logan, was being charged. Bound by the attorney-client privilege, Coventry and Kunz kept silent as Logan was ultimately convicted and sentenced to life in prison for a murder he did not commit. Andrew Wilson had given his attorneys permission to disclose his secret only upon the event of Wilson’s death. In anticipation of that moment, in 1982, Coventry and Kunz executed an affidavit attesting to Wilson’s admission. They kept the affidavit in a lock box under the bed in one of the men’s bedrooms for a quarter of a century while Logan served prison time for a crime he did not commit. It was only in 2007, upon Wilson’s death, that they produced the affidavit to the authorities. In 2008, Logan was released from prison. [20] See Matthew Walberg, South Side Man Finally Free After 26 Years, CHI. TRIB., Sept. 5, 2008. Both Coventry and Kunz now speak openly about the angst and torment they suffered as a result of being ethically bound to keep Wilson’s secret. [21] See Possley, supra note 19 (describing how Wilson’s attorneys were “haunted” over the years for not being able to disclose Wilson’s confession). They also give thanks to their client, Wilson, for agreeing to allow them to disclose the secret, because without Wilson’s permission, they would both have had to take that secret to their graves. Both Coventry and Kunz have been celebrated by the legal community for the ability to keep their client’s secret. [22] From a legal ethics position, their decision was not debatable. They had no option but to keep this secret, as it concerned a past crime. See, e.g., United States v. Zolin , 491 U.S. at 562–63 (explaining that attorney-client privilege protects communications regarding past crimes). In addition to being lauded by the legal community for keeping quiet for all these years, they should also be commended for having the foresight to acquire their client’s permission to reveal his secret after his death. Coventry and Kunz have been much less well received by the community at large. [23] See, e.g., 60 Minutes (CBS television broadcast Mar. 9, 2008) (covering story of Alton Logan and representation of Andrew Wilson by attorneys Dale Coventry and Jamie Kunz).