Confidentiality, counseling, and care: When others need to know what clients need to disclose

Fordham Law Review

Volumn 65, Issue 6, 1997, Pages 2747-2772

  Sisak, Janine ^a  

^a NONE

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EID: 0031533576     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (167)

1. The results of Matthew's blood test indicated a presence of antibodies to the Human Immunodeficiency Virus ("HIV"). See Mary Ellen Hombs, AIDS Crisis in America: A Reference Handbook 62 (1992). HIV is a virus that damages the body's immune system, leaving it vulnerable to a wide variety of opportunistic infections and malignancies, which in turn produce an array of symptoms known as the acquired immunodeficiency syndrome ("AIDS"). See Jeffrey T. Huber, HIV/AIDS Community Information Services: Experiences in Serving Both At-Risk and HIV-Infected Populations 11 (1996).
2. The results of Matthew's blood test indicated a presence of antibodies to the Human Immunodeficiency Virus ("HIV"). See Mary Ellen Hombs, AIDS Crisis in America: A Reference Handbook 62 (1992). HIV is a virus that damages the body's immune system, leaving it vulnerable to a wide variety of opportunistic infections and malignancies, which in turn produce an array of symptoms known as the acquired immunodeficiency syndrome ("AIDS"). See Jeffrey T. Huber, HIV/AIDS Community Information Services: Experiences in Serving Both At-Risk and HIV-Infected Populations 11 (1996).
3. AIDS is a debilitating disease that seems to kill without exception. Loretta McLaughlin, AIDS: An Overview, in The AIDS Epidemic: Private Rights and the Public Interest 15, 18 (Padraig O'Malley ed., 1989) [hereinafter AIDS Epidemic]. As of today, there is no cure. See Huber, supra note 1, at 24.
4. Although heterosexual transmission is rapidly increasing in the United States, AIDS disproportionately affects gay men and intravenous drug users. See Hombs, supra note 1, at 2; see also Ronald Bayer, Private Acts, Social Consequences: AIDS and the Politics of Public Health 21-22 (1989) (describing the beginnings of what was first labeled gay-related immune deficiency or GRID); McLaughlin, supra note 2, in AIDS Epidemic, supra note 2 at 15-16, 24 (same). Because the AIDS epidemic first hit these historically disadvantaged groups, a stigma developed, which was driven by social factors such as political disenfrancishment, homophobia, and racism. See Hombs, supra note 1, at 2. The effect of this intense stigma has been a further marginalization of already marginalized groups. See Robert T. Begg, Legal Ethics and AIDS: An Analysis of Selected Issues, 3 Geo. J. Legal Ethics 1, 9 (1989); see also McLaughlin, supra note 2, in AIDS Epidemic, supra note 2, at 24 (noting that the homosexual stigma attached to AIDS resulted in political neglect while encouraging "pseudo-religio-political prejudice and vindictiveness").
5. Although heterosexual transmission is rapidly increasing in the United States, AIDS disproportionately affects gay men and intravenous drug users. See Hombs, supra note 1, at 2; see also Ronald Bayer, Private Acts, Social Consequences: AIDS and the Politics of Public Health 21-22 (1989) (describing the beginnings of what was first labeled gay-related immune deficiency or GRID); McLaughlin, supra note 2, in AIDS Epidemic, supra note 2 at 15-16, 24 (same). Because the AIDS epidemic first hit these historically disadvantaged groups, a stigma developed, which was driven by social factors such as political disenfrancishment, homophobia, and racism. See Hombs, supra note 1, at 2. The effect of this intense stigma has been a further marginalization of already marginalized groups. See Robert T. Begg, Legal Ethics and AIDS: An Analysis of Selected Issues, 3 Geo. J. Legal Ethics 1, 9 (1989); see also McLaughlin, supra note 2, in AIDS Epidemic, supra note 2, at 24 (noting that the homosexual stigma attached to AIDS resulted in political neglect while encouraging "pseudo-religio-political prejudice and vindictiveness").
6. The myths and fears about the nature, cause, and transmission of the disease have led to widespread discrimination against people with HIV/AIDS. See generally ACLU, Epidemic of Fear: A Survey of AIDS Discrimination in the 1980s and Policy Recommendations for the 1990s (1990) (analyzing complainant population and discrimination types as well as national and state trends in discriminatory behavior); Lawrence O. Gostin, The AIDS Litigation Project: A National Review of Court and Human Rights Commission Decisions, Part II: Discrimination, 263 JAMA 2086 (1990) (reviewing highly litigated areas of AIDS discrimination including education, housing, employment, public accommodation, health care, and insurance).
7. An unreasonable fear of contracting AIDS continues despite substantial proof that HIV is not transmitted through normal, non-sexual social interaction or casual contact. See Hombs, supra note 1, at 7 (recounting findings that HIV is transmitted only through the direct exchange of blood, semen, or vaginal secretion). This fear is encouraged by "the nature of the disease, by inflammatory reporting of AIDS-related matters in the news media, and by the impact of powerful [sexual] taboos." See Begg, supra note 3, at 8.
8. See George A. Lamb & Linette G. Liebling, The Role of Education in AIDS Prevention, in The AIDS Epidemic, supra note 2, at 315 (noting "unprecedented hysteria and fear of contagion, leading to isolation of persons with AIDS and their friends and families").
9. For lawyers representing people with HIV, one of the most common tasks is drafting wills. Rhonda R. Rivera, Lawyers, Clients, and AIDS: Some Notes from the Trenches, 49 Ohio St. L.J. 883, 891 (1989); see also William A. Bradford, Jr., Rendering Legal Aid to People with AIDS, 37 Prac. Law., June 1991, at 23, 27 (listing wills, powers of attorney, living wills, and trusts as ways in which lawyers can organize clients' affairs to help them prepare for death).
10. For lawyers representing people with HIV, one of the most common tasks is drafting wills. Rhonda R. Rivera, Lawyers, Clients, and AIDS: Some Notes from the Trenches, 49 Ohio St. L.J. 883, 891 (1989); see also William A. Bradford, Jr., Rendering Legal Aid to People with AIDS, 37 Prac. Law., June 1991, at 23, 27 (listing wills, powers of attorney, living wills, and trusts as ways in which lawyers can organize clients' affairs to help them prepare for death).
11. People with HIV/AIDS often turn to public interest organizations for three reasons. First, contracting the virus frequently drives people into financial ruin. See Giovanni Anzalone, Note, AIDS and Mandatory Pro Bono: A Step Toward the Equal Administration of Justice, 8 Geo. J. Legal Ethics 691, 692-94 (1995) (describing the effect that AIDS has in drawing people into poverty as a consequence of the attached medical costs). The cost of the drugs used in treatment are prohibitively expensive, especially now that the new costly multi-drug therapies are proving to be most effective. See Robert Pear, Expense Means Many Can't Get Drugs for AIDS, N.Y. Times, Feb. 16, 1997, at A1. Insurance coverage, although somewhat helpful, does not cover much of these pharmaceutical expenses. Id. Accordingly, people with HIV must turn to legal services or not-for-profit organizations that charge on a sliding scale, if they charge at all. Second, people with HIV/AIDS often need a wide range of legal services because contracting the virus often raises many legal issues. See generally Rivera, supra note 7, at 891-925 (discussing in detail the legal needs of people with HIV/AIDS). For instance, a person with HIV might need assistance navigating entitlement programs. Id. at 908. He also might want to bring a discrimination complaint if he feels that he was fired on the basis of his seropositivity. Id. at 912. Further, he likely will need estate planning services for drafting living wills, medical powers of attorney, and other documents. Id. at 891-903. He might even need help with a family law issue if he is involved in a divorce or a custody battle. Id. at 922. Public interest organizations provide this type of holistic service because they are situated to assist a population, rather than specialize in a particular area of law. Finally, even if the person has money and desires assistance from a private firm or practitioner, he may consult with several lawyers and be denied legal representation on an "ethically" discriminatory basis. See Begg, supra note 3, at 18 (explaining that a lawyer has full discretion under the ethical rules to reject any client he wishes). If the person cannot find a lawyer who is willing to represent a person with HIV, the person may have no choice but to go to a public interest organization. For an excellent discussion of how attorney-based discrimination can lead to underrepresentation of peopie with HIV, see id. at 14-40.
12. People with HIV/AIDS often turn to public interest organizations for three reasons. First, contracting the virus frequently drives people into financial ruin. See Giovanni Anzalone, Note, AIDS and Mandatory Pro Bono: A Step Toward the Equal Administration of Justice, 8 Geo. J. Legal Ethics 691, 692-94 (1995) (describing the effect that AIDS has in drawing people into poverty as a consequence of the attached medical costs). The cost of the drugs used in treatment are prohibitively expensive, especially now that the new costly multi-drug therapies are proving to be most effective. See Robert Pear, Expense Means Many Can't Get Drugs for AIDS, N.Y. Times, Feb. 16, 1997, at A1. Insurance coverage, although somewhat helpful, does not cover much of these pharmaceutical expenses. Id. Accordingly, people with HIV must turn to legal services or not-for-profit organizations that charge on a sliding scale, if they charge at all. Second, people with HIV/AIDS often need a wide range of legal services because contracting the virus often raises many legal issues. See generally Rivera, supra note 7, at 891-925 (discussing in detail the legal needs of people with HIV/AIDS). For instance, a person with HIV might need assistance navigating entitlement programs. Id. at 908. He also might want to bring a discrimination complaint if he feels that he was fired on the basis of his seropositivity. Id. at 912. Further, he likely will need estate planning services for drafting living wills, medical powers of attorney, and other documents. Id. at 891-903. He might even need help with a family law issue if he is involved in a divorce or a custody battle. Id. at 922. Public interest organizations provide this type of holistic service because they are situated to assist a population, rather than specialize in a particular area of law. Finally, even if the person has money and desires assistance from a private firm or practitioner, he may consult with several lawyers and be denied legal representation on an "ethically" discriminatory basis. See Begg, supra note 3, at 18 (explaining that a lawyer has full discretion under the ethical rules to reject any client he wishes). If the person cannot find a lawyer who is willing to represent a person with HIV, the person may have no choice but to go to a public interest organization. For an excellent discussion of how attorney-based discrimination can lead to underrepresentation of peopie with HIV, see id. at 14-40.
13. Although a person with HIV can obtain appropriate services from general legal services organizations, he might feel more comfortable at a legal organization that specializes in providing a wide range of services to people with HIV. See Bradford, supra note 7, at 24 (encouraging lawyers to work with AIDS service organizations because people with HIV are most likely to trust a lawyer affiliated with such groups). Specialized organizations might be better at addressing some of the common sensitive legal issues like discrimination and confidentiality. See Rivera, supra note 7, at 891 (suggesting that these organizations have experience in resolving common problems). They might also be better suited to offer HIV/AIDS-related social services in conjunction with legal assistance. See Bradford, supra note 7, at 24 (explaining that AIDS service organizations are often equipped to provide anonymous HIV testing, counseling, AIDS prevention education, medical referrals, and housing assistance).
14. Seropositivity means testing positive for HIV. Hombs, supra note 1, at 63.
15. Model Code of Professional Responsibility (1980) [hereinafter Model Code].
16. Model Rules of Professional Conduct (1994) [hereinafter Model Rules].
17. Although the professional duty of confidentiality is related to the attorney-client privilege, it is much broader in scope. Model Code, supra note 11, EC 4-4. First, the privilege only prevents the court from compelling the attorney to testify about his professional communications with a client. Model Rules, supra note 12, Rule 1.6 cmt. 5. The professional duty, in contrast, demands confidentiality at all times, preventing voluntary disclosures except when made in furtherance of legal representation. Id. cmt. 5, cmt. 7. Second, the duty protects more than privileged information; it also seems to protect most other information gained by the attorney in the professional capacity. Id. cmt. 5. Here, the hypothetical does not require a lengthy discussion of the attorney-client evidentiary privilege because the lawyer is not asked to testify. This Note's analysis, therefore, will be limited to the professional duty of confidentiality.
18. Model Rules, supra note 12, Rule 1.6 cmt. 9; see also Harry I. Subin, The Lawyer as Superego: Disclosure of Client Confidences to Prevent Harm, 70 Iowa L. Rev. 1091, 1147-54 (1985) (explaining the broad scope and the narrow exceptions contained in the confidentiality provisions).
19. Subin, supra note 14, at 1148, 1151.
20. Model Rules, supra note 12, Rule 1.6. This provision provides, in pertinent part: Rule 1.6 Confidentiality of Information (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 . . . . Id.
21. Id. Rule 1.6(a).
22. The Model Code consists of both Ethical Considerations and Disciplinary Rules. See Model Code, supra note 11, Preliminary Statement. While the Ethical Considerations are aspirational in nature, the Disciplinary Rules, by defining the minimum level of conduct necessary to avoid disciplinary action, are mandatory. Id.
23. Id. DR 4-101(A). This provision provides, in pertinent part: DR 4-101 Preservation of Confidences and Secrets of a Client. (A) "Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client. (B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly: (1) Reveal a confidence or secret of his client. (2) Use a confidence or secret of his client to the disadvantage of the client. (3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure. (C) A lawyer may reveal: (1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them. (2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order. (3) The intention of his client to commit a crime and the information necessary to prevent the crime. Id. (footnotes omitted).
24. Id. DR 4-101(B)(1).
25. Id. DR 4-101(A). In comparison to DR 4-101, Rule 1.6 provides broader protection, encompassing everything relating to representation regardless of whether it is embarrassing or detrimental. See Model Rules, supra note 12, Rule 1.6 Model Code Comparison.
26. See Model Rules, supra note 12, Rule 1.6(b)(1); Model Code, supra note 11, DR 4-101(C)(3).
27. The future crime exceptions of the professional duty of confidentiality were modeled after the future crime exceptions to the attorney-client privilege. See Subin, supra note 14, at 1146.
28. Much debate surrounded whether the Model Rules should make disclosure mandatory or discretionary in these circumstances. The debate began in 1979 when the ABA Commission, chaired by Robert J. Kutak, offered an early draft of the Model Rules, which were ultimately to replace the Model Code. See Ted Schneyer, Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct, 14 Law & Soc. Inquiry 677, 702-03 (1989). The early discussion draft recommended tougher disclosure rules, including one that required lawyers to disclose client information to prevent substantial bodily harm. Id. at 704-05, 712. This proposal instantly sparked heated controversy; in an outrage, the American Trial Lawyers Association ("ATLA") claimed that the proposed disclosure rules would ruin the traditional adversary system of justice. Id. at 711-12. In protest, ATLA instantly began drafting an alternative code. Id. at 710-11. Ultimately, in 1982, the Kutak Commission conceded and recommended in the final draft that attorneys be permitted, rather than required, to disclose client confidences when necessary to prevent a client from committing a criminal or fraudulent act likely to result in substantial bodily harm or injury to the financial interest or property of another. See Rule 1.6 (Revised Final Draft, June 30, 1982, reprinted in 1996 Selected Standards on Professional Responsibility 18, 18 (Thomas D. Morgan & Ronald D. Rotunda eds. 1996) [hereinafter Selected Standards].
29. Model Rules, supra note 12, Rule 1.6(b)(1). Fourteen states have adopted a version of this rule. See Selected Standards, supra note 24, app. A at 132-40 (State-by-State Analysis of Ethics Rules on Client Confidences).
30. Model Code, supra note 11, DR 4-101(C)(3). Twenty-five states have adopted a version of this rule. See Selected Standards, supra note 24, app. A at 132-37.
31. Model Rules, supra note 12, Rule 1.6(a).
32. Model Code, supra note 11, DR 4-101(A).
33. For a general discussion of the criminalization of HIV transmission and risky behavior, see Michael L. Closen et al., Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 Ark. L. Rev. 921 (1994) (discussing criminalization of HIV transmission under both traditional crime statutes and specific HIV-transmission statutes); Karen E. Lahey, Note, The New Line of Defense: Criminal HIV Transmission Laws, 1 Syracuse J. Legis. & Pol'y 85 (1995) (discussing criminal HIV transmission statutes as a new mode of public health policy).
34. For a general discussion of the criminalization of HIV transmission and risky behavior, see Michael L. Closen et al., Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 Ark. L. Rev. 921 (1994) (discussing criminalization of HIV transmission under both traditional crime statutes and specific HIV-transmission statutes); Karen E. Lahey, Note, The New Line of Defense: Criminal HIV Transmission Laws, 1 Syracuse J. Legis. & Pol'y 85 (1995) (discussing criminal HIV transmission statutes as a new mode of public health policy).
35. For examples of states that have criminalized knowing transmission of HIV through sexual intercourse, see: Ark. Code Ann. § 5-14-123 (Michie 1993); Fla. Stat. Ann. § 384.24 (West Supp. 1997); Ga. Code Ann. § 16-5-60 (1996); Idaho Code § 39-608 (1993); Ill. Ann. Stat. ch. 720, paras. 5/12-16.2 (Smith-Hurd 1993); La. Rev. Stat. Ann. § 14:43.5 (West Supp. 1997); Md. Code Ann., Health-Gen. § 18-601.1 (1994); Mich. Comp. Laws Ann. § 333.5210 (West 1992); Mo. Ann. Stat. § 191.677 (Vernon 1996); Nev. Rev. Stat. Ann. § 201.205 (Michie Supp. 1995); N.D. Cent. Code § 12.1-20-17 (Supp. 1995); Okla. Stat. tit. 21 § 1192.1 (Supp. 1997); S.C. Code Ann. § 44-29-145 (Supp. 1996); Tenn. Code Ann. § 39-13-109 (Supp. 1996); Wash. Rev. Code Ann. § 9A.36.021 (West Supp. 1997). For examples of statutes criminalizing other modes of transmission, see: Cal. Penal Code § 12022.85 (West 1992) (enhancing sentence of convicted felon who rapes with the knowledge that he or she has HIV); Colo. Rev. Stat. Ann. § 18-7-201.7, § 18-7-205.5 (West Supp. 1996) (criminalizing sexual conduct as a possible mode of transmission but only for prostitutes and their patrons); Ind. Code Ann. § 35-42-2-6 (Burns Supp. 1996) (criminalizing throwing blood or other bodily fluids on a law enforcement or corrections officer); Ky. Rev. Stat. Ann. § 529.090 (Michie/Bobbs-Merrill Supp. 1996) (criminalizing sexual conduct as a possible mode of transmission but only for prostitutes and their patrons); Ohio Rev. Code Ann. § 2927.13 (Anderson 1996) (criminalizing donating blood, blood plasma, or blood product with knowledge or constructive knowledge of seroposivity); Va. Code Ann. § 32.1-289.2 (Michie 1993) (criminalizing donating blood, body fluids, organs or tissues with knowledge of seropositivity).
36. Most statutes take the following form: "A person commits the offense of exposing another to [HIV] if the person knows he or she [is] positive for [HIV] and . . . engages in sexual penetration with another person without first having informed the other person of the presence of [HIV]." Ark. Code Ann. § 5-14-123(b). For similar examples, see Mich. Comp. Laws Ann. § 333.5210(1) ("A person . . . who knows that he or she is HIV infected, and who engages in sexual penetration with another person without having first informed the other person that he or she has [HIV] is guilty of a felony."); S.C. Code Ann. § 44-29-145(1) ("It is unlawful for a person who knows that he is infected with [HIV] to knowingly engage in sexual intercourse . . . ."); Tenn. Code Ann. § 39-13-109 ("A person commits the offense of criminal exposure of another to HIV when, knowing that such person is infected with HIV, such person knowingly . . . engages in intimate contact with another . . . ."). Most statutes would therefore criminalize Matthew's conduct if he engaged in sexual intercourse with his partner because he knows that he is positive.
37. Most commentators agree that, theoretically, certain risky behavior can be prosecuted under traditional criminal statutes such as homicide (murder, manslaughter, and negligent homicide), attempted murder, or assault. See Closen et al., supra note 29, at 924. They point out, however, that prosecutions for such behavior have been rare because of difficulties proving intent to kill or to transmit the virus. Id. at 926-27 (noting that risky behavior does not amount to intent to kill or transmit the virus). Thus, most cases prosecuted under traditional criminal statutes have involved defendants who expressed an intention to kill or transmit the virus. Id. at 937. Out of approximately thirty prosecutions for HIV-related conduct, only four or five cases involved a defendant who did not express such an intention. Id. at 938. See generally Jennifer Grishkin, Case Note, Knowingly Exposing Another to HIV, 106 Yale L.J. 1617 (1997) (arguing that the court's decision in Maryland v. Smallwood, 680 A.2d
38. (Md. 1996), demonstrated the inadequacy of traditional criminal homicide statutes in prosecuting the knowing exposure of another to HIV).
39. For instance, although more than half of the states follow the Model Rules, only fourteen states adopted Rule 1.6(b)(1). See Selected Standards, supra note 24, app. A. at 132-37. Ten states require disclosure either for any crime or for one likely to result in substantial bodily harm. Id. Finally, twenty-five states follow the Model Code which grants the lawyer the most discretion. Id. See generally Harris Weinstein, Client Confidences and the Rules of Professional Responsibility: Too Little Consensus and Too Much Confusion, 35 S. Tex. L. Rev. 727, 733-37 (1994) (analyzing the failure of the much-debated Model Rule 1.6 to create uniformity).
40. See supra note 25 and accompanying text.
41. HIV Found in One of Five Semen Samples from HIV Infected Men, AIDS Weekly, Sept. 11, 1995, at 14, 14-15 (citing a study that revealed that the live and infectious virus was found only 22% of the time).
42. See John W. Mellors et al., Prognosis in HIV-1 Infection Predicted by the Quantity of Virus in Plasma, 272 Science 1167, 1167 (1996) (noting estimates that 12% of infected individuals will remain free from AIDS for over twenty years). Recent studies suggest that combination drug therapies have been successful in frustrating the onset of AIDS. See Pear, supra note 8, at A1.
43. Delaware Bar Association Professional Ethics Committee, Op. 1988-2, at 4 (1988). In a footnote, the Delaware Bar mentioned that the criminalization of HIV transmission is rapidly evolving, but failed to speculate on how that might change the result. Id. By leaving this question unresolved, the Delaware Bar implied that a criminal HIV transmission statute, or a more developed common law, might have affected the result.
44. For an empirical analysis of how different disclosure rules affect attorney behavior, see Leslie C. Levin, Testing the Radical Experiment: A Study of Lawyer Response to Clients Who Intend to Harm Others, 47 Rutgers L. Rev 81 (1994). In her study of New Jersey lawyers, Levin finds that few lawyers have ever disclosed information in order to prevent the client from harming another. Id. at 128-30. Even lawyers required to disclose under the ethical rule were reluctant to do so; only about half actually disclosed. Id. at 129.
45. If lawyers in general are hesitant to breach confidentiality, lawyers for people with HIV may be even more hesitant due to their clients' heightened need for confidentiality. See infra notes 40-43 and accompanying text.
46. Significant harm can result from a breach of confidentiality. The stigma associated with the disease fosters hostility toward people with HIV, often resulting in ostracism and discrimination. See supra notes 3-6 and accompanying text.
47. For instance, in choosing the executor of a will, a lawyer must know the client's relationship to his partner vis-a-vis the client's relationship to his family. Often family members will harbor hostility toward the partner, believing him partially responsible for the client's life choices. Thus, to formulate an appropriate strategy, lawyers need to be apprised of such details. See Rivera, supra note 7, at 891-95.
48. See Model Rules, supra note 12, Rule 1.6 cmt. 2 (observing that confidentiality encourages the full development of the facts necessary for proper representation); Model Code, supra note 11, EC 4-1 (same). Some commentators suggest, however, that the added inducement of confidentiality is unnecessary to encourage client candor. See Deborah L. Rhode, Ethical Perspectives on Legal Practice, 37 Stanford L. Rev. 589, 614 (1985) [hereinafter Rhode, Perspectives] (positing that clients often have no choice but to consult a lawyer and offer relevant information); Subin, supra note 14, at 1163-64 (arguing that the complexities of the legal system sufficiently induce full disclosure because nondisclosure would jeopardize the client's goals). The potential harm from disclosure in the hypothetical scenario described here, however, suggests that confidentiality is vital to ensure full disclosure.
49. See Bradford, supra note 7, at 26 (noting that the stigma associated with the disease has made the AIDS community distrustful of service providers).
50. Model Rules, supra note 12, Rule 1.6 cmt. 3 ("Almost without exception, clients come to lawyers in order to determine what their rights are and what is . . . deemed to be legal and correct. . . . Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.").
51. Levin, supra note 38, at 119 (noting that the surveyed lawyers believed that they had successfully counseled and dissuaded clients from committing wrongdoing).
52. Sarah could also withdraw from representation. See Model Rules, supra note 12, Rule 1.16(b) ("[A] lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client . . . ."); Model Code, supra note 11, DR 2-110(C) (permitting a lawyer to withdraw if the client's conduct "renders it unreasonably difficult for the lawyer to carry out his employment effectively"). Here, Sarah arguably has discretion to withdraw under the Model Rules because such withdrawal would have no effect on his estate planning representation - Matthew could just go to another lawyer within Sarah's organization. Likewise, under the Model Code, Sarah arguably has discretion to withdraw if she feels that her moral beliefs make it impossible for her to effectively represent Matthew. Despite this discretion, Sarah likely will decide against withdrawal. Instead, she will accept representation and promise confidentiality, hoping that she can persuade Matthew to disclose for himself.
53. The term "the standard conception of the lawyer's role" was coined by Gerald Postema. See Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. Rev. 63, 73 & n.26 (1980).
54. See Model Code, supra note 11, pmbl. ("[J]ustice is based . . . in respect for the dignity of the individual and his capacity through reason for enlightened self-government."); see also Monroe H. Freedman, Understanding Lawyers' Ethics 13-14 (1990). The adversary system generally seeks to protect human dignity and individual rights. Id. at 15-17. It works to protect a core set of basic rights such as personal autonomy, trial by jury, the right to call and confront witnesses, the right against self-incrimination, and a general right to due process of law. Id. at 13. The right to effective counsel potentially is the most fundamental right as it serves as a threshold to the other basic rights. Id.
55. Model Code, supra note 11, pmbl.
56. Id. EC 7-1.
57. Id. EC 5-1.
58. Freedman, supra note 48, at 10.
59. See Model Rules, supra note 12, Rule 1.2(a) ("A lawyer shall abide by a client's decisions concerning the objectives of representation . . . .").
60. Id. Rule 1.2 cmt. 1.
61. Id. Rule 1.2(b) cmt. 3 ("[R]epresenting a client does not constitute approval of the client's views or activities.").
62. Freedman, supra note 48, at 50 ("Once the lawyer has chosen to accept responsibility to represent a client, however, the zealousness of that representation cannot be tempered by the lawyer's moral judgments of the client or of the client's cause.").
63. See generally id. ch. 3 (defending nonaccountability as necessary to client autonomy); Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, 4 Am. B. Found. Res. J. 613 (1986) (presenting moral justifications for the amoral role of lawyering); Serena Stier, Legal Ethics: The Integrity Thesis, 52 Ohio St. L.J. 551 (1991) (defending the current law of lawyering by arguing that, despite criticism to the contrary, it does allow lawyers to foster their own integrity).
64. See generally id. ch. 3 (defending nonaccountability as necessary to client autonomy); Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, 4 Am. B. Found. Res. J. 613 (1986) (presenting moral justifications for the amoral role of lawyering); Serena Stier, Legal Ethics: The Integrity Thesis, 52 Ohio St. L.J. 551 (1991) (defending the current law of lawyering by arguing that, despite criticism to the contrary, it does allow lawyers to foster their own integrity).
65. Freedman, supra note 48, at 48 ("[H]uman autonomy is a fundamental moral concept that must determine, in substantial part, the answers that we give to some [of] the most difficult issues regarding the lawyer's role."); see also Pepper, supra, note 57, at 615-19 (suggesting that the values of autonomy and equality demand that the client's conscience be superior to that of the lawyer's).
66. Pepper, supra note 57, at 617; see also Stier, supra note 57, at 565 ("A lawyer, within limits, must refrain from judging the morality . . . [of] a client out of regard for that client's own autonomy as a moral agent and as an affirmation of the lawyer's own moral independence within the circumstances of the lawyer-client relationship.").
67. Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Human Rights 1, 8 (1975). Wasserstrom was one of the first to critically examine the "role-differentiated behavior of lawyers," in which a lawyer's role makes it both appropriate and desirable for a lawyer to put aside moral considerations that would otherwise be relevant if not decisive. Id. at 3. For defenses of role-differentiated behavior, see Freedman, supra note 48, at 44-47 (pointing out that role-differentiated behavior has its own moral force). See generally Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1976) (arguing that it is morally right for a lawyer to show favoritism for a client because of the special relationship between them); Pepper, supra note 57 (offering a moral-based justification for the lawyer's amoral role based on autonomy, equality, and diversity); Stier, supra note 57 (arguing that making lawyers morally accountable would be morally wrong as a violation of client autonomy).
68. Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Human Rights 1, 8 (1975). Wasserstrom was one of the first to critically examine the "role-differentiated behavior of lawyers," in which a lawyer's role makes it both appropriate and desirable for a lawyer to put aside moral considerations that would otherwise be relevant if not decisive. Id. at 3. For defenses of role-differentiated behavior, see Freedman, supra note 48, at 44-47 (pointing out that role-differentiated behavior has its own moral force). See generally Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1976) (arguing that it is morally right for a lawyer to show favoritism for a client because of the special relationship between them); Pepper, supra note 57 (offering a moral-based justification for the lawyer's amoral role based on autonomy, equality, and diversity); Stier, supra note 57 (arguing that making lawyers morally accountable would be morally wrong as a violation of client autonomy).
69. Model Rules, supra note 12, Rule 2.1.
70. 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 1.6:304 (2d ed. Supp. 1993).
71. See Model Rules, supra note 12, Rule 2.1; Model Code, supra note 11, EC 7-8 ("[I]t is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible."); see also Model Rules, supra note 12, Rule 2.1 cmt. 2 ("Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions . . . .")
72. Freedman, supra note 48, at 51 (arguing that the lawyer has responsibility to provide the client with the fullest legal and moral advice so that the client can make the most informed choice possible).
73. Stier, supra note 57, at 567. In her study, Levin also found that, despite the encouragement from the ethical rules, lawyers are hesitant to use moral reasons to dissuade their clients from engaging in harmful or criminal conduct. See Levin, supra note 38, at 117-18. As one lawyer explained, "discussions of morality can sound pompous (and)/or condescending . . . thereby breaking down the channel of communication." Id. at 118 (citations omitted).
74. Stier, supra note 57, at 567.
75. See Freedman, supra note 48, at 57 (asserting that lawyers act morally by counseling clients about their moral responsibilities); Pepper, supra note 57, at 630-32 (arguing that the lawyer's duty to counsel involves a moral element); Stier, supra note 57, at 596 (same); see also Robert P. Lawry, Damned and Damnable: A Lawyer's Moral Duties with Life on the Line, Loy. L.A. L. Rev. 1641, 1643-44 (1996) (rejecting the notion of role-differentiated behavior and instead accepting that both the lawyer and the client are morally involved in the decision-making process).
76. See supra notes 61-62 and accompanying text.
77. See supra notes 63-64 and accompanying text.
78. Reed E. Loder, When Silence Screams, 29 Loy. L.A. L. Rev. 1785, 1796 (1996) [hereinafter Loder, Silence] (arguing that one's profession should not require moral indifference).
79. Postema, supra note 47, at 79-80.
80. Id. at 79 ("[C]ut off from sound moral judgment, the lawyer's ability to do his job well - to determine the applicable law and effectively advise his clients - is likely to be seriously affected.").
81. Id. at 78-79 (arguing that neutral partisanship results in severe impoverishment of the lawyer's moral experience - a kind of moral prostitution); Loder, Silence, supra note 70, at 1796 ("Professions cannot survive on sanctions and rules. They require ideals and professional commitment to those ideals. Such allegiance springs from personal integrity.").
82. David Luban offers the most extensive defense of the moral activist approach in his book Lawyers and Justice: An Ethical Study. See David Luban, Lawyers and Justice: An Ethical Study pt. I (1988). He questions whether the adversary system offers sufficient justification for role-differentiated behavior. Id. at 56. Although Luban admits that such behavior might be justified in the criminal paradigm, he posits that the adversary system fails to justify role-differentiated behavior in the civil paradigm. Id. at 58-59. In coming to this conclusion, Luban doubts that the adversary system effectively ferrets out the truth or is the best method of defending legal rights. Id. at 68-78. He ultimately suggests that the adversary system exists because there is no better alternative. Id. at 92-93. See generally Rhode, Perspectives, supra note 42 (arguing that an attorney should not be able to avoid moral responsibility by simply appealing to a role that allows client interests to trump all others); Paul R. Tremblay, Practiced Moral Activism, 8 St. Thomas L. Rev. 9 (1995) (illustrating how the moral activist approach would apply in a poverty law setting).
83. David Luban offers the most extensive defense of the moral activist approach in his book Lawyers and Justice: An Ethical Study. See David Luban, Lawyers and Justice: An Ethical Study pt. I (1988). He questions whether the adversary system offers sufficient justification for role-differentiated behavior. Id. at 56. Although Luban admits that such behavior might be justified in the criminal paradigm, he posits that the adversary system fails to justify role-differentiated behavior in the civil paradigm. Id. at 58-59. In coming to this conclusion, Luban doubts that the adversary system effectively ferrets out the truth or is the best method of defending legal rights. Id. at 68-78. He ultimately suggests that the adversary system exists because there is no better alternative. Id. at 92-93. See generally Rhode, Perspectives, supra note 42 (arguing that an attorney should not be able to avoid moral responsibility by simply appealing to a role that allows client interests to trump all others); Paul R. Tremblay, Practiced Moral Activism, 8 St. Thomas L. Rev. 9 (1995) (illustrating how the moral activist approach would apply in a poverty law setting).
84. Luban, supra note 74, at 116; see also Rhode, Perspectives, supra note 42, at 643 ("And a retreat into role fails even to confront, let alone resolve, the moral difficulties it raises.").
85. Luban, supra note 74, at 154.
86. Id.
87. Id. at 125.
88. Id.
89. See Rhode, Perspectives, supra note 42, at 613 (identifying the critical issue as the extent to which autonomy interests are "reconcilable with fundamental interests in protecting innocent third parties"); see also Sissela Bok, Secrets: On the Ethics of Concealment and Revelation 128 (1982) (arguing that the autonomy argument fails when secrets result in harm to others).
90. See Subin, supra note 14, at 1162 (asserting that although the client may have power to subvert the process, he has no right to do so); see also Loder, Silence, supra note 70, at 1793 ("Safeguarding the client's autonomy to do manifest evil is hardly a good reason to justify professional silence.").
91. See Subin, supra note 14, at 1159-60 (arguing that the moral balance should shift because the rationalizations for strict confidentiality are unsubstantiated); Luban, supra note 74, at 203-04 ("The existence of the injured party expands our concern for human dignity from one person . . . to two . . . .").
92. Luban, supra note 74, at 203-04 (arguing that to favor the perpetrator of the harm over the victim would be to say that "the victim's injury is less important than the [client's] honor").
93. See W. James Ellison, Legal Ethics Condones AIDS Transfer: A Disclosure Dilemma, 12 Whittier L. Rev. 327, 348 (1991).
94. See Loder, Silence, supra note 70, at 1785-86.
95. See generally Reed E. Loder, Out from Uncertainty: A Model of the Lawyer-Client Relationship, 2 S. Cal. Interdisciplinary L.J. 89, 134 (1993) [hereinafter Loder, Out from Uncertainty] (arguing for more moral dialogue within the lawyer-client relationship).
96. See Luban, supra note 74, at 160.
97. See supra notes 60-62 and accompanying text.
98. Luban, supra note 74, at 163.
99. Id. at 165.
100. See id. at 169-70 (discussing Brandeis's vision of phronesis, or "practical wisdom," that makes lawyers different from others).
101. See id. at 171.
102. Id.
103. See Stier, supra note 57, at 567.
104. As discussed above, the standard conception of lawyering may actually thwart moral development.
105. Tremblay, supra note 74, at 56 (arguing that the moral activist approach is particularly problematic when the client is powerless).
106. Id. at 55-56 (explaining that financial incentives deter lawyers from questioning the morality of clients' goals).
107. Luban himself recognizes this risk and agrees that certain civil matters, particularly those between powerless individuals and private megaliths, demand the protections of the adversary system. See Luban, supra note 74, at 65. He accordingly reformulates the "criminal defense paradigm" to include: any litigation context in which zealous advocacy on behalf of relatively weak clients is justified by virtue of the fact that we have political reasons to aim at prophylactic, or preemptive, overprotection of the individual from powerful institutions (including the state, but also including private institutions), even at the expense of justice. Id.; see also Rhode, Perspectives, supra note 42, at 606 (noting that some civil cases are characterized by the same disparity of power between parties as criminal proceedings). Although Luban accounts for weak clients, he only does so in litigation contexts where the client is clearly overpowered; in what Deborah Rhode calls the "David and Goliath paradigm." Id. at 607. This situation, where Sarah acts in a non-litigation context for her powerless client, would fall outside of Luban's exception despite the particular importance of client loyalty and autonomy. See Tremblay, supra note 74, at 58 (suggesting that one would need a much broader exception to encompass such matters but questioning whether a broad exception could be justified).
108. See Loder, Silence, supra note 70, at 1796.
109. Id. at 1792.
110. Naomi R. Cahn, Styles of Lawyering, 43 Hastings L.J. 1039, 1059-60 (1992) (encouraging lawyers to value difference, to challenge existing structure, change the understanding of what lawyers do, and recognize the importance of methods that have historically been overlooked or excluded).
111. This alternative form of moral reasoning was identified by Carol Gilligan in her ground-breaking book, In a Different Voice. See Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (1989) [hereinafter Gilligan, Different Voice]. Gilligan performed three psychological studies to observe the relationship between judgment and action in situations of moral conflict and choice. Id. at 2. In one study where a boy and a girl are asked to consider a moral dilemma, Gilligan observes that the boy addresses the problem using deductive logic to differentiate morality from the law. Id. at 26-27. The girl, however, sees "a world comprised of relationships rather than of people standing alone, a world that coheres through human connection rather than through systems of rules." Id. at 29. Although both children see a need for resolution, he sees it "impersonally through systems of logic and law" while "she personally through communication in relationship." Id. On this and similar results, Gilligan concludes that women's moral development is not inferior to that of men's; instead, it is fully developed, but simply different. She sees the contrasting images of hierarchy and network as two distinct, yet complimentary views of morality. Id. at 33. In writing this book, Gilligan hoped to expand the understanding of human moral development by including women, whose absence from the psychological literature has generally been interpreted as indicating inferior moral development in women. Id. at 1-2. Despite this feminist purpose, Gilligan has received much criticism from other feminists who fear that labeling certain attributes as "female" only reinforces limiting stereotypes about women. See Cahn, supra note 101, at 1051 ("[By labeling styles as male or female], we risk perpetuating the very subordination of 'the female voice' that many of us, as feminists, are trying to overcome."); Carrie Menkel-Meadow, Portia in a Different Voice: Speculations on a Women's Lawyering Process, 1 Berkeley Women's L.J. 39, 41 (1985) [hereinafter Menkel-Meadow, Portia] ("Attributing behavior characteristics to a particular gender is problematic, because . . . we risk perpetuating the conventional stereotypes that prevent us from seeing the qualities as qualities without their gendered context."); Deborah L. Rhode, Gender and Professional Roles, 63 Fordham L. Rev. 39, 42 (1994) [hereinafter Rhode, Gender] (warning that the celebration of gender differences risks both oversimplifying - because there is no "generic woman" - and overclaiming - because such sweeping sex-based dichotomies do not exist). Nevertheless, this largely academic debate has resulted in some agreement. Most, even Gilligan, agree that the ethic of care does not characterize all women, and is characteristic of some men. Gilligan, Different Voice, supra, at 2 (stating that the different voice is characterized not by gender but by theme); see Cahn, supra note 101, at 1053 (suggesting that many men and most women actually combine aspects of each moral orientation); Menkel-Meadow, Portia, supra, at 48 (arguing that any mature person should be able to consider both types of moral analyses); Rhode, Gender, supra, at 42 (noting that recent research generally finds "few attributes on which the sexes consistently vary"). Thus, the ethic of care has been recast as a form of moral reasoning inherent to every mature person, woman or man. Legal scholars have since introduced the ethic of care as an alternative model of legal ethics. See Stephen Ellmann, The Ethic of Care as an Ethic for Lawyers, 81 Geo. L.J. 2665 (1993). Ellmann's article offers a provocative account of how the ethic of care might transform the lawyering process. Similarly, Naomi Cahn, Carrie Menkel-Meadow, and Deborah Rhode have addressed how an ethic of care might affect lawyering and the legal profession. See generally Cahn, supra note 101 (analyzing different lawyering methods as a way to transform the legal practice); Menkel-Meadow, Portia, supra (focusing on how the inclusion of women's voices will expand our understanding of the lawyering process); Rhode, Gender, supra (seeking to advocate a vision of professionalism that includes women's experiences as based on feminist commitments rather than biological categories). For a study documenting the ethic of care as it is used by both women and men lawyers, see Rand Jack & Dana Crowley Jack, Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers (1989).
112. This alternative form of moral reasoning was identified by Carol Gilligan in her ground-breaking book, In a Different Voice. See Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (1989)
113. This alternative form of moral reasoning was identified by Carol Gilligan in her ground-breaking book, In a Different Voice. See Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (1989) [hereinafter Gilligan, Different Voice]. Gilligan performed three psychological studies to observe the relationship between judgment and action in situations of moral conflict and choice. Id. at 2. In one study where a boy and a girl are asked to consider a moral dilemma, Gilligan observes that the boy addresses the problem using deductive logic to differentiate morality from the law. Id. at 26-27. The girl, however, sees "a world comprised of relationships rather than of people standing alone, a world that coheres through human connection rather than through systems of rules." Id. at 29. Although both children see a need for resolution, he sees it "impersonally through systems of logic and law" while "she personally through communication in relationship." Id. On this and similar results, Gilligan concludes that women's moral development is not inferior to that of men's; instead, it is fully developed, but simply different. She sees the contrasting images of hierarchy and network as two distinct, yet complimentary views of morality. Id. at 33. In writing this book, Gilligan hoped to expand the understanding of human moral development by including women, whose absence from the psychological literature has generally been interpreted as indicating inferior moral development in women. Id. at 1-2. Despite this feminist purpose, Gilligan has received much criticism from other feminists who fear that labeling certain attributes as "female" only reinforces limiting stereotypes about women. See Cahn, supra note 101, at 1051 ("[By labeling styles as male or female], we risk perpetuating the very subordination of 'the female voice' that many of us, as feminists, are trying to overcome."); Carrie Menkel-Meadow, Portia in a Different Voice: Speculations on a Women's Lawyering Process, 1 Berkeley Women's L.J. 39, 41 (1985) [hereinafter Menkel-Meadow, Portia] ("Attributing behavior characteristics to a particular gender is problematic, because . . . we risk perpetuating the conventional stereotypes that prevent us from seeing the qualities as qualities without their gendered context."); Deborah L. Rhode, Gender and Professional Roles, 63 Fordham L. Rev. 39, 42 (1994) [hereinafter Rhode, Gender] (warning that the celebration of gender differences risks both oversimplifying - because there is no "generic woman" - and overclaiming - because such sweeping sex-based dichotomies do not exist). Nevertheless, this largely academic debate has resulted in some agreement. Most, even Gilligan, agree that the ethic of care does not characterize all women, and is characteristic of some men. Gilligan, Different Voice, supra, at 2 (stating that the different voice is characterized not by gender but by theme); see Cahn, supra note 101, at 1053 (suggesting that many men and most women actually combine aspects of each moral orientation); Menkel-Meadow, Portia, supra, at 48 (arguing that any mature person should be able to consider both types of moral analyses); Rhode, Gender, supra, at 42 (noting that recent research generally finds "few attributes on which the sexes consistently vary"). Thus, the ethic of care has been recast as a form of moral reasoning inherent to every mature person, woman or man. Legal scholars have since introduced the ethic of care as an alternative model of legal ethics. See Stephen Ellmann, The Ethic of Care as an Ethic for Lawyers, 81 Geo. L.J. 2665 (1993). Ellmann's article offers a provocative account of how the ethic of care might transform the lawyering process. Similarly, Naomi Cahn, Carrie Menkel-Meadow, and Deborah Rhode have addressed how an ethic of care might affect lawyering and the legal profession. See generally Cahn, supra note 101 (analyzing different lawyering methods as a way to transform the legal practice); Menkel-Meadow, Portia, supra (focusing on how the inclusion of women's voices will expand our understanding of the lawyering process); Rhode, Gender, supra (seeking to advocate a vision of professionalism that includes women's experiences as based on feminist commitments rather than biological categories). For a study documenting the ethic of care as it is used by both women and men lawyers, see Rand Jack & Dana Crowley Jack, Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers (1989).
114. This alternative form of moral reasoning was identified by Carol Gilligan in her ground-breaking book, In a Different Voice. See Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (1989) [hereinafter Gilligan, Different Voice]. Gilligan performed three psychological studies to observe the relationship between judgment and action in situations of moral conflict and choice. Id. at 2. In one study where a boy and a girl are asked to consider a moral dilemma, Gilligan observes that the boy addresses the problem using deductive logic to differentiate morality from the law. Id. at 26-27. The girl, however, sees "a world comprised of relationships rather than of people standing alone, a world that coheres through human connection rather than through systems of rules." Id. at 29. Although both children see a need for resolution, he sees it "impersonally through systems of logic and law" while "she personally through communication in relationship." Id. On this and similar results, Gilligan concludes that women's moral development is not inferior to that of men's; instead, it is fully developed, but simply different. She sees the contrasting images of hierarchy and network as two distinct, yet complimentary views of morality. Id. at 33. In writing this book, Gilligan hoped to expand the understanding of human moral development by including women, whose absence from the psychological literature has generally been interpreted as indicating inferior moral development in women. Id. at 1-2. Despite this feminist purpose, Gilligan has received much criticism from other feminists who fear that labeling certain attributes as "female" only reinforces limiting stereotypes about women. See Cahn, supra note 101, at 1051 ("[By labeling styles as male or female], we risk perpetuating the very subordination of 'the female voice' that many of us, as feminists, are trying to overcome."); Carrie Menkel-Meadow, Portia in a Different Voice: Speculations on a Women's Lawyering Process, 1 Berkeley Women's L.J. 39, 41 (1985) [hereinafter Menkel-Meadow, Portia] ("Attributing behavior characteristics to a particular gender is problematic, because . . . we risk perpetuating the conventional stereotypes that prevent us from seeing the qualities as qualities without their gendered context."); Deborah L. Rhode, Gender and Professional Roles, 63 Fordham L. Rev. 39, 42 (1994) [hereinafter Rhode, Gender] (warning that the celebration of gender differences risks both oversimplifying - because there is no "generic woman" - and overclaiming - because such sweeping sex-based dichotomies do not exist). Nevertheless, this largely academic debate has resulted in some agreement. Most, even Gilligan, agree that the ethic of care does not characterize all women, and is characteristic of some men. Gilligan, Different Voice, supra, at 2 (stating that the different voice is characterized not by gender but by theme); see Cahn, supra note 101, at 1053 (suggesting that many men and most women actually combine aspects of each moral orientation); Menkel-Meadow, Portia, supra, at 48 (arguing that any mature person should be able to consider both types of moral analyses); Rhode, Gender, supra, at 42 (noting that recent research generally finds "few attributes on which the sexes consistently vary"). Thus, the ethic of care has been recast as a form of moral reasoning inherent to every mature person, woman or man. Legal scholars have since introduced the ethic of care as an alternative model of legal ethics. See Stephen Ellmann, The Ethic of Care as an Ethic for Lawyers, 81 Geo. L.J. 2665 (1993). Ellmann's article offers a provocative account of how the ethic of care might transform the lawyering process. Similarly, Naomi Cahn, Carrie Menkel-Meadow, and Deborah Rhode have addressed how an ethic of care might affect lawyering and the legal profession. See generally Cahn, supra note 101 (analyzing different lawyering methods as a way to transform the legal practice); Menkel-Meadow, Portia, supra (focusing on how the inclusion of women's voices will expand our understanding of the lawyering process); Rhode, Gender, supra (seeking to advocate a vision of professionalism that includes women's experiences as based on feminist commitments rather than biological categories). For a study documenting the ethic of care as it is used by both women and men lawyers, see Rand Jack & Dana Crowley Jack, Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers (1989).
115. This alternative form of moral reasoning was identified by Carol Gilligan in her ground-breaking book, In a Different Voice. See Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (1989) [hereinafter Gilligan, Different Voice]. Gilligan performed three psychological studies to observe the relationship between judgment and action in situations of moral conflict and choice. Id. at 2. In one study where a boy and a girl are asked to consider a moral dilemma, Gilligan observes that the boy addresses the problem using deductive logic to differentiate morality from the law. Id. at 26-27. The girl, however, sees "a world comprised of relationships rather than of people standing alone, a world that coheres through human connection rather than through systems of rules." Id. at 29. Although both children see a need for resolution, he sees it "impersonally through systems of logic and law" while "she personally through communication in relationship." Id. On this and similar results, Gilligan concludes that women's moral development is not inferior to that of men's; instead, it is fully developed, but simply different. She sees the contrasting images of hierarchy and network as two distinct, yet complimentary views of morality. Id. at 33. In writing this book, Gilligan hoped to expand the understanding of human moral development by including women, whose absence from the psychological literature has generally been interpreted as indicating inferior moral development in women. Id. at 1-2. Despite this feminist purpose, Gilligan has received much criticism from other feminists who fear that labeling certain attributes as "female" only reinforces limiting stereotypes about women. See Cahn, supra note 101, at 1051 ("[By labeling styles as male or female], we risk perpetuating the very subordination of 'the female voice' that many of us, as feminists, are trying to overcome."); Carrie Menkel-Meadow, Portia in a Different Voice: Speculations on a Women's Lawyering Process, 1 Berkeley Women's L.J. 39, 41 (1985) [hereinafter Menkel-Meadow, Portia] ("Attributing behavior characteristics to a particular gender is problematic, because . . . we risk perpetuating the conventional stereotypes that prevent us from seeing the qualities as qualities without their gendered context."); Deborah L. Rhode, Gender and Professional Roles, 63 Fordham L. Rev. 39, 42 (1994) [hereinafter Rhode, Gender] (warning that the celebration of gender differences risks both oversimplifying - because there is no "generic woman" - and overclaiming - because such sweeping sex-based dichotomies do not exist). Nevertheless, this largely academic debate has resulted in some agreement. Most, even Gilligan, agree that the ethic of care does not characterize all women, and is characteristic of some men. Gilligan, Different Voice, supra, at 2 (stating that the different voice is characterized not by gender but by theme); see Cahn, supra note 101, at 1053 (suggesting that many men and most women actually combine aspects of each moral orientation); Menkel-Meadow, Portia, supra, at 48 (arguing that any mature person should be able to consider both types of moral analyses); Rhode, Gender, supra, at 42 (noting that recent research generally finds "few attributes on which the sexes consistently vary"). Thus, the ethic of care has been recast as a form of moral reasoning inherent to every mature person, woman or man. Legal scholars have since introduced the ethic of care as an alternative model of legal ethics. See Stephen Ellmann, The Ethic of Care as an Ethic for Lawyers, 81 Geo. L.J. 2665 (1993). Ellmann's article offers a provocative account of how the ethic of care might transform the lawyering process. Similarly, Naomi Cahn, Carrie Menkel-Meadow, and Deborah Rhode have addressed how an ethic of care might affect lawyering and the legal profession. See generally Cahn, supra note 101 (analyzing different lawyering methods as a way to transform the legal practice); Menkel-Meadow, Portia, supra (focusing on how the inclusion of women's voices will expand our understanding of the lawyering process); Rhode, Gender, supra (seeking to advocate a vision of professionalism that includes women's experiences as based on feminist commitments rather than biological categories). For a study documenting the ethic of care as it is used by both women and men lawyers, see Rand Jack & Dana Crowley Jack, Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers (1989).
116. Ellmann, supra note 102, at 2665; see Gilligan, Different Voice, supra note 102, at 30, 32 (setting up two different moral approaches - the boy uses a hierarchy of rights while the girl considers a network of relationships).
117. Ellmann, supra note 102, at 2668; see Gilligan, Different Voice, supra note 102, at 32, 38 (noting that the boy abstracts the moral problem from the interpersonal situation whereas the girl contextually sees the resolution as depending on the characters and circumstance).
118. Ellmann, supra note 102, at 2668; see also Jack & Jack, supra note 102, at 126-27 (describing caring lawyers as those who infuse concepts of avoidance of harm and preservation of relationships into the rights-oriented legal system).
119. See Carol Gilligan, Moral Orientation and Moral Development, in Women and Moral Theory 19, 30-31 (Eva Feder Kittay & Diana T. Meyers eds., 1987) (hereinafter Gilligan, Moral Orientation] (criticizing justice reasoning for considering detachment as the hallmark of mature moral thinking); see also Rhode, Gender, supra note 102, at 49 (arguing that the feminist perspective demands that lawyers accept moral responsibility rather than reflexively retreating into roles).
120. Ellmann, supra note 102, at 2668; see Gilligan, Moral Orientation, supra note 106, at 31 (characterizing justice reasoning as the quest for agreement, whose risk is the tendency to confuse one's perspective with an objective truth).
121. Carrie Menkel-Meadow, Portia Redux: Another Look at Gender, Feminism, and Legal Ethics, 2 Va. J. Soc. Pol'y & L. 75, 94 (1994) [hereinafter Menkel-Meadow, Portia Redux].
122. Ellmann, supra note 102, at 2669-70. Ellmann rejects the argument that the ethic of care, by focusing on connection, posits that no claim is more important than another. Id. at 2676-77. He instead argues that the ethic of care does involve making value judgments; it simply "resists treating moral issues as mathematical equations, stripped of context and resolved by abstraction." Id. at 2676.
123. See Menkel-Meadow, Portia, supra note 102, at 57 (arguing that the ethic of care allows a lawyer to enter the client's world and understand more fully what the client desires).
124. Ellmann, supra note 102, at 2682; see also Jack & Jack, supra note 102, at 127-28 (noting that caring lawyers recognize that their role includes legal and emotional responsiveness to clients).
125. Ellmann, supra note 102, at 2694. See generally Stephen Ellmann, Empathy and Approval, 43 Hastings L.J. 991, 991-93 (1992) (discussing the meaning and elements of empathy in the context of the lawyer-client relationship).
126. See Gilligan, Different Voice, supra note 102, at 65 (noting that a common theme in care reasoning is the wish not to hurt others); Menkel-Meadow, Portia, supra note 102, at 46 (describing the girl's hopes to "find a resolution that will hurt least the one who can least bear the hurt").
127. Ellmann, supra note 102, at 2713.
128. Id.
129. Id.
130. Id. at 2684; see Gilligan, Different Voice, supra note 102, at 74 (arguing that self-care is essential to the ethic of care because to not care for oneself would blur the line between self-sacrifice and mere caring).
131. Ellmann, supra note 102, at 2684 (citations omitted).
132. Id. at 2684-85; see also Jack & Jack, supra note 102, at 110-20 (defining the experience of moral cost as the sacrifice of one legitimate moral end so that another might be accomplished).
133. Ellmann, supra note 102, at 2671.
134. Id. at 2672.
135. Gilligan, Different Voice, supra note 102, at 100.
136. Cahn, supra note 101, at 1063.
137. Id. at 1064-65.
138. Id. at 1065.
139. Id. at 1067.
140. But see Minna J. Kotkin, Professionalism, Gender and the Public Interest: The Advocacy of Protection, 8 St. Thomas L. Rev. 157, 171 (1995) (arguing that the "drive" to take care of people is entirely consistent with traditional notions of zealous representation).
141. See Menkel-Meadow, Portia Redux, supra note 108, at 84; Jack & Jack, supra note 102, at 93-94 (differentiating between rights and care but concluding that using both approaches "creates the possibility that the concerns of both . . . will be weighed").
142. Menkel-Meadow, Portia, supra note 102, at 85 (arguing that a care-oriented approach might enable a lawyer to minimize harm by encouraging more textured analyses, rather than by enumerating the factors to be considered); see also Rhode, Gender, supra note 102, at 49 (encouraging lawyers to consider a realistic social and economic landscape instead of resolving the situation by reference to some abstract principle).
143. Menkel-Meadow, Portia Redux, supra note 108, at 110.
144. See supra notes 103-04 and accompanying text.
145. See supra notes 101-02 and accompanying text.
146. See Ellmann, supra note 102, at 2681-82 (arguing that client loyalty is consistent with the ethic of care).
147. Sarah must expect the worst in this situation. If Matthew discloses to Ben, Ben might leave Matthew if not for Matthew's positive status alone, then for Matthew's lack of candor. Losing such stability in the face of a fatal disease might threatens Matthew's well-being, on an emotional and possibly even a physical level.
148. See Ellmann, supra note 102, at 2685 (positing that caring lawyers should consider the extent of the client's need in choosing clients).
149. See supra note 9.
150. See Ellmann, supra note 102, at 2699-700 (encouraging empathetic understanding as a means to win client cooperation).
151. See id. at 2712 (noting the potential conflict between caring for one's client and caring for others).
152. This evaluation is, of course, for Sarah to make. When considering whether to further a client's goals, she must consider the extent to which they compromise her own needs. See id. at 2713.
153. Studies suggest that certain treatments strategies may postpone the onset of AIDS if administered as early as possible. See Huber, supra note 1, at 9; Kenneth H. Mayer, The Clinical Spectrum of HIV Infections: Implications for Public Policy, in AIDS Epidemic, supra note 2, 37, 37 (suggesting that individuals treated with Azidothymidine (AZT) at early stages might remain asymptomatic for a longer period than without such treatment).
154. See Gilligan, Different Voice, supra note 102, at 30 (observing that the ethic of care uses communication as the primary mode of conflict resolution); see also Loder, Out from Uncertainty, supra note 86, at 138 (arguing for a moral dialogue that most resembles one of care).
155. Menkel-Meadow, Portia, supra note 102, at 57. But see Ellmann, supra note 192, at 2704 (arguing that a caring lawyer can not so easily refrain from paternalistic intervention).
156. Menkel-Meadow, Portia, supra, note 102, at 57 (arguing that lawyer domination is of little concern because the lawyer enters the world of the client and submerges herself).
157. Ellmann, supra note 102, at 2707.
158. Cahn, supra note 101, at 1066.
159. Id. at 1065; see also Katharine T. Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829, 864-65 (1990) (characterizing the ethic of care dialogue as "consciousness raising" in that it values honesty over consistency, teamwork over self-sufficiency, and personal narrative over abstract analysis).
160. Cahn, supra note 101, at 1065.
161. Id. at 1066-67.
162. Id.
163. Id.; see also Ellmann, supra note 102, at 2703-08 (rejecting Menkel-Meadow's suggestion that caring lawyers will refrain from paternalistic intervention).
164. Cahn, supra note 101, at 1067.
165. Id.
166. See Huber, supra note 1, at 22-23 (noting how several religious leaders characterized AIDS as God's disapproval of the sinful gay lifestyle).
167. Here, she must be careful not to bore him with a lengthy public health lesson. He likely does know the risks; she must simply remind him as a seque to the crux of the discussion.