Professional secrecy and its exceptions: Spaulding v. Zimmerman revisited

Minnesota Law Review

Volumn 83, Issue 1, 1998, Pages 63-127

  Cramton, Roger C ^a   Knowles, Lori P ^b  

^a MIT Sloan School of Management   (United States)

^b HASTINGS CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0041761817     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (236)

1. In a newspaper account of the accident, a deputy sheriff was quoted as stating that the visibility at the crossing was good. See 2 Killed Friday in Car Collision, PARK REGION ECHO (Alexandria, Minn.), Aug. 26, 1956, at 1. Surviving family members, present at the time, report that high corn impaired visibility.
2. See id. Our account is assembled from the reported decision, the record on appeal in the Supreme Court of Minnesota, Spaulding v. Zimmerman, 116 N.W.2d 704 (Minn. 1962) (Nos. 38526 and 38529) [hereinafter Record on Appeal], a newspaper report of the accident, see supra note 1, and telephone conversations with surviving parties, family members, and lawyers.
3. Telephone Interview by Lori P. Knowles with Dr. Florian Ledermann (Sept. 1997).
4. See Record on Appeal, supra note 2, at 118-20.
5. See Spaulding, 116 N.W.2d at 708.
6. See Record on Appeal, supra note 2, at 15.
7. See, e.g., DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 149-54 (1988);
8. Stephen L. Pepper, Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 YALE L.J. 1545, 1606 (1995).
9. The case is reprinted in at least five professional responsibility coursebooks. See ROBERT F. COCHRAN, JR. & TERESA S. COLLETT, THE RULES OF THE LEGAL PROFESSION 65-69 (1996);
10. GEOFFREY C. HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYERING 5-9 (2d ed. 1994);
11. L. RAY PATTERSON & THOMAS B. METZLOFF, LEGAL ETHICS: THE LAW OF PROFESSIONAL RESPONSIBILITY 430-35 (3d ed. 1989);
12. DEBORAH L. RHODE, PROFESSIONAL RESPONSIBILITY: ETHICS BY THE PERVASIVE METHOD 248-52 (1994);
13. DEBORAH L. RHODE & DAVID LUBAN, LEGAL ETHICS 249-52 (2d ed. 1995).
14. In Spaulding, for example, the reality that defense counsel was selected, directed and paid by the liability insurer created a risk that defense counsel might ignore the insured, deferring to the economic interest of the insurer, who controlled repeat business.
15. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1983) [hereinafter MODEL RULES].
16. The broader disclosure provisions of the draft rules developed by the Kutak Commission, rules generally reflecting prior law, were repeatedly narrowed throughout the drafting process, culminating in a rejection by the House of Delegates in 1983 of any permissive disclosure of client fraud. See Ted Schneyer, Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct, 14 L. & SOC. INQUIRY 677, 700-20 (1989).
17. See Attorneys' Liability Assurance Society, Inc., Ethics Rules on Client Confidences,
18. reprinted in THOMAS D. MORGAN & RONALD D. ROTUNDA, 1998 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY (1998) [hereinafter ALAS Memorandum]. This tabulation of exceptions to confidentiality of state ethics rules indicates, for example, that at least 40 jurisdictions have rejected the ABA position that a lawyer may not disclose confidential client information to prevent a criminal fraud likely to result in financial injury to the property of another.
19. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS (Proposed Official Draft 1997) [hereinafter RESTATEMENT OF LAW GOVERNING LAWYERS]. The confidentiality provisions, sections 111-117B, were given final approval at the ALI annual meeting on May 11-12, 1998.
20. See id. at 117A.
21. Unless otherwise indicated, the information in the following section is found in the reported decision, Spaulding v. Zimmerman, 116 N.W.2d 704 (Minn. 1962), or the Record on Appeal, supra note 2.
22. Telephone Interview by Lori P. Knowles with Justice Walter Rogosheske (Retired) (Sept. 1997).
23. Dr. Blake makes an appearance in another well-known case in the professional responsibility field. He was apparently the neurologist charged with medical malpractice in the "case within the case" aspect of Togstad v. Vesely, Otto, Miller, & Keefe, 291 N.W.2d 686 (Minn. 1980) (en banc), a legal malpractice case against a lawyer who, in a preliminary interview declining to take the case, gave careless advice about the merits of client's medical malpractice claim. The coincidence with Spaulding is even more extraordinary because Togstad also involves a further harm occurring during the treatment of an aortic aneurysm.
24. Spaulding, 116 N.W.2d at 707 (quoting trial court's memorandum).
25. The trial court assumed for the purpose of its decision that the aneurysm was caused by the accident. See id. at 708. Dr. Cain's review of x-rays taken immediately after the accident and some time later indicates that the aneurysm developed after the accident. See id.
26. See Record on Appeal, supra note 2, at 87.
27. For a discussion of contributory and imputed negligence, see W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 65, at 451-62 (5th ed. 1984) (contributory negligence as a complete bar to recovery prior to advent of comparative fault regimes in most states); id. § 73, at 522-27 (negligence of driver imputed to family member in some jurisdictions).
28. Defendants' argument on appeal that "insurance limits as well as physical injuries formed the basis for settlement" supports our view that settlement discussions were conducted on the assumption that claimants' recovery would be within the limits of the policies. Spaulding, 116 N.W.2d at 707, 711; see also Record on Appeal, supra note 2, at 86.
29. See Milkovich v. Saari, 203 N.W.2d 408 (Minn. 1973) (en banc) (holding that Minnesota, which has no guest statute, will apply Minnesota law to an action in its courts between an Ontario passenger and driver who were involved in an accident in Minnesota; the Ontario statute would have required proof of gross negligence).
30. Telephone Interview with Dr. Florian Ledermann, supra note 3.
31. The trial court's memorandum stated: "There is no doubt of the good faith of both defendants' counsel." Spaulding, 116 N.W.2d at 708.
32. Id.
33. Id.
34. Id. at 710.
35. Minnesota lowered the age of majority from 21 to 18 years of age in 1973. Act of May 24, 1973, ch. 725, §8 4, Minn. Laws 2082 (effective June 1, 1973).
36. Because the settlement was set aside and the case remanded for a new trial, Spaulding was given the opportunity for a new assessment of the damages he suffered. The result was a new settlement for an additional (but unknown) amount.
37. Telephone Interviews by Lori P. Knowles with Richard L. Pemberton and Robert Gislason (Sept. 1997).
38. Judge Rogosheske had been elevated to the Minnesota Supreme Court by the tune the Spaulding case reached that court; as Justice he did not participate in the Supreme Court's decision. However, the high court may have been reluctant to reverse the earlier decision of a new colleague, and therefore Justice Rogosheske's presence on the court could have influenced the outcome of the case on appeal.
39. Record on Appeal, supra note 2, at 129 (Judge Rogosheske's memorandum opinion).
40. The trial court's memorandum mentioned "the failure of plaintiffs counsel to use available rules of discovery" to obtain Dr. Hannah's report; and later referred to "plaintiffs ignorance or . . . incompetence." Spaulding v. Zimmerman, 116 N.W.2d 704, 709 (Minn. 1962); Record on Appeal, supra note 2, at 131, 133.
41. Telephone Interview with Justice Walter F. Rogosheske (Retired), supra note 15.
42. Record on Appeal, supra note 2, at 90.
43. The Record on Appeal reveals that Dr. Blake, one of the physicians who examined Spaulding before the trial, submitted a report to Roberts stating that the case should not be settled for another year or so, until the extent of Spaulding's brain injuries could be determined. Record on Appeal, supra note 2, at 38-39. If the trial judge had received this report, he might not have approved the settlement, which either the Spaulding family, or Roberts, or both, wanted to enter into in March 1957. Roberts' failure to request a copy of Dr. Hannah's report was clearly a tactical error which left him open to a claim for professional negligence, a conflicting interest with his client that explains his replacement as Spaulding's attorney shortly after the proceeding to set aside the earlier judgment was filed. On appeal, defendants argued that the plaintiffs concealment of Dr. Blake's report should bar Spaulding's effort to set aside the settlement. The court rejected the argument, holding that another report prepared by Dr. Blake, which was submitted to the court, adequately indicated the uncertainty concerning the extent of Spaulding's brain injuries. See Spaulding, 116 N.W.2d at 710-11.
44. Record on Appeal, supra note 2, at 108.
45. See Spaulding, 116 N.W.2d at 709.
46. Id.
47. For discussion of the concept of efficient breach, see RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 131-34, 142, 153 (5th ed. 1998) (arguing that "contract law in general [is] an inappropriate area in which to enforce moral (insofar as they may be distinct from economic) principles").
48. Spaulding, 116 N.W.2d at 709.
49. Spaulding was born on May 24, 1936 and the settlement agreement was approved by the court on May 8, 1957, 16 days before his 21st birthday. Record on Appeal, supra note 2, at 15.
50. If Spaulding had been an adult at the time the settlement was approved, he (or, if he had died of the unrevealed aneurysm, his family) would have had no legal recompense other than a possible action for professional malpractice against lawyer Roberts or Spaulding's physicians. An adult's settlement of a personal injury claim bars any future claim arising out of the same facts. See RESTATEMENT (SECOND) OF JUDGMENTS § 18-20 (1982) (claim preclusion). A subsequent fraud claim would be available only if the settlement was induced by material false representations and detrimental reliance, which was not the case in Spaulding. Moreover, any professional malpractice claim under the circumstances would have been problematic in terms of liability and difficult to prosecute for practical reasons. It is not clear that the facts would have supported a malpractice claim against Spaulding's physicians. Moreover, a claim against any of the professionals involved would have depended upon the plaintiff finding a lawyer willing to take the case and the availability of experts willing to testify concerning professional negligence - both uncertain prospects in rural Minnesota in the 1950s.
51. Canon 15 of the ABA Canons of Professional Ethics stated that "the great trust of the lawyer is to be performed within and not without the bounds of the law." CANONS OF PROFESSIONAL ETHICS Canon 15 (1908).
52. A similar formulation is part of the Lawyer's Oath that is traditionally used in bar admission ceremonies in a number of states. Canon 7 of the ABA Model Rules of Professional Conduct was entitled: "A Lawyer Should Represent a Client Zealously Within the Bounds of the Law." See also MODEL CODE OF PROFESSIONAL RESPONSIBILITY Ethical Considerations 7-1 to 7-3 (1969).
53. Leading discussions of the premises of the adversary role include: Luban, supra note 7; Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, A Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613;
54. Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669 (1978);
55. Murray L. Schwartz, The Zeal of the Civil Advocate, 1983 AM. B. FOUND. RES. J. 543.
56. Ted Schneyer persuasively argues that the "standard conception" of adversary representation advanced by some academic writers is only one of several competing visions of the lawyer's role, not the only conception permissible under ethics codes. The standard conception fails to take account of the degree of discretion conferred on lawyers by ethics rules and other law. See Ted Schneyer, Moral Philosophy's Standard Misconception of Legal Ethics, 1984 WIS. L. REV. 1529, 1534-43;
57. Ted Schneyer, Some Sympathy for the Hired Gun, 41 J. LEGAL EDUC. 11 (1991). Schneyer asks what it means operationally to be immune from moral criticism: by whom, in what contexts, and with what consequences? As a practical matter, recognition of moral immunity of a lawyer when acting in the professional role is likely to be limited to those in the legal profession who subscribe to this conception of the lawyer's role.
58. See, e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962) (dismissing FELA claim for failure of plaintiffs lawyer to attend a pretrial conference because the parties were bound by the acts or omissions of their lawyers - "any other notion would be wholly inconsistent with our system of representative litigation.").
59. For an elaboration of the arguments, see supra notes 45-46 and materials cited therein; see also Andrew L. Kaufman, A Commentary on Pepper's "The Lawyer's Amoral Ethical Role," 1986 AM. B. FOUND. RES. J. 651;
60. David Luban The Lysistratian Prerogative: A Response to Stephen Pepper, 1986 AM. B. FOUND. RES. J. 637.
61. See Record on Appeal, supra note 2, at 132. The Dead Bodies Case is another much-discussed situation raising this issue. Lawyers for a murder defendant learned from him that he had also killed two young women and hidden their bodies in remote locations. The lawyers confirmed his story by finding and observing the bodies. They remained silent in response to inquiries from a grieving parent concerned about the missing daughter. The details later became public when, in connection with an insanity defense, the defendant described the series of murders in his testimony. A huge public outcry ensued. Criminal charges, for violating a New York law requiring a decent burial and a report of deaths that occur without medical attention, were brought against one of the lawyers. The dismissal of the criminal charges was affirmed on appeal. See People v. Belge, 359 N.E.2d 377 (N.Y. 1976) (per curiam). The lawyers' failure to disclose was found to be the required response under state ethics rules. See N.Y. State Bar Ass'n Comm. on Prof. Ethics, Op. 479 (1978).
62. The American Bar Association Canons of Professional Ethics, initially adopted by the ABA in 1908, provided ethical guidance to state courts ruling on lawyer conduct until they were displaced in 1970 by widespread state adoption of the ABA Model Code of Professional Responsibility. The Canons are reprinted in several compilations of standards governing the professional conduct of lawyers. See THOMAS D. MORGAN & RONALD D. ROTUNDA, 1998 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY 616-28 [hereinafter MORGAN & ROTUNDA STANDARDS].
63. The Canons were expanded by amendment from 1908 to 1969. A provision dealing directly with a lawyer's duty to maintain confidentiality of client information was first adopted in 1928. ABA CANONS OF PROFESSIONAL ETHICS Canon 37 (1928).
64. Scholars have frequently commented on the evolution of the profession's codes from general language, often cast in moral and aspirational terms, to a quasi-criminal code of professional discipline. The initial step was taken in 1969 when the ABA Model Code of Professional Responsibility separated "ethical considerations" from "disciplinary rules." MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1969).
65. The 1983 ABA Model Rules of Professional Conduct continued the "de-moralization" and "legalization" of the lawyer codes under the leadership of Professor Geoffrey C. Hazard, Jr., the reporter on the ABA's Model Rules project. Professor Hazard later served as Director of the American Law Institute during the lengthy period of development of the ALI's Restatement of the Law Governing Lawyers. For discussion of this evolution of ethics codes and Professor Hazard's role in it, see David Luban & Michael Millemann, Good Judgment: Ethics Teaching in Dark Times, 9 GEO. J. LEGAL ETHICS 31, 41-53 (1995). Although "ethics" in the sense of professional obligation was more sharply distinguished from "law" in the 1950s than it is today, it is worth emphasizing that the mandatory duties stated in the Canons were intended to, and did, serve as the basis for professional discipline.
66. One could argue that Zimmerman, having put Spaulding in peril by his driving, had an affirmative obligation to protect him from further harm. See infra notes 81-87 and accompanying text.
67. Canon 15 stated that a lawyer "must obey his own conscience and not that of his client." Canon 22, dealing with candor and fairness to the court and other lawyers, stated that the lawyer was "an officer of the law charged . . . with the duty of aiding in the administration of justice." Canon 44 permitted withdrawal "when the client insists upon an unjust or immoral course in the conduct of his case."
68. The sparse case law supporting this proposition primarily dates from the period following the shift in 1970 from the Canons to the Model Code of Professional Responsibility. See, e.g., SEC v. National Student Mktg. Corp., 457 F. Supp. 682 (D.D.C. 1978) (requiring a lawyer to take reasonable steps to prevent a client fraud on investors in an injunction proceeding by the SEC, accompanied by settlement of contemporaneous private civil actions); Roberts v. Ball, Hunt, Hart, Brown, & Baerwitz, 128 Cal. Rptr. 901 (Cal. Ct. App. 1976) (complaint stating that a lawyer omitted a material fact from a legal opinion directed to a person with whom the client sought a loan stated a cause of action for negligent misrepresentation). See generally Geoffrey C. Hazard, Jr., Rectification of Client Fraud: Death and Revival of a Professional Norm 33 EMORY L.J. 271 (1984); infra note 174 (citing caselaw).
69. Spaulding v. Zimmerman, 116 N.W.2d 704, 709-10 (Minn. 1962). An analogous situation in which professional rules require disclosure to a court of information adverse to a client's interest is one in which a lawyer seeks ex parte relief affecting third persons. See MODEL RULES, supra note 10, Rule 3.3(e) (requiring candor to the tribunal in ex parte proceedings).
70. See supra note 43.
71. The distinction between candor to the court and candor to a third person is a central feature of the Model Rules. Rule 3.3(a) requires disclosure to the court to protect the integrity of judicial process. Disclosure of confidential client information is required even if disclosure is opposed by and will harm the client. This disclosure requirement explicitly trumps the confidentiality duty of Rule 1.6(a). On the other hand, Rule 4.1(b), if taken literally, forbids disclosure to third persons unless the situation falls within the narrow exceptions expressed in Rule 1.6(b). The contrast is most dramatic with respect to client fraud: fraud on a tribunal must be disclosed; fraud on a third person cannot be disclosed. See also ABA Comm. on Ethics and Professional Responsibility, Formal Ops. 94-387 (1994) and 95-397 (1995).
72. See ABA/BNA Manual of Professional Conduct § 01:3 (listing the dates of state adoption of the Model Rules).
73. MINN. RULES OF PROFESSIONAL CONDUCT Rule1.6(b)(3).
74. Two recent ABA ethics opinions illustrate the Model Rule distinction, in civil litigation, between required disclosure to the court and voluntary disclosure to the adverse party. See ABA Comm. on Ethics and Professional Responsibility, Formal Ops. 94-387 (1994) and 95-397 (1995). The first, Opinion 94-387, concludes that a lawyer, knowing that the statute of limitations has run on a claim asserted by the opposing party, may negotiate a settlement with that party without disclosing that the claim is barred. There is no ethical obligation to disclose this information. On the other hand, Opinion 95-397 concludes that when the lawyer's client has died after a settlement offer has been received, but prior to response, the lawyer must disclose this fact because the claim is transferred to a new party - the personal representative - who may or may not be the lawyer's client. Misrepresentation to the court would be involved in accepting the offer without disclosing the information, which should also be noticed to the opposing party. At this point, the deceased client's lawyer no longer has authority to accept the offer as the client's agent. See ABA Formal Op. 95-397; cf. Virzi v. Grand Trunk Warehouse & Cold Storage Co., 571 F. Supp. 507, 511 (E.D. Mich. 1983) (setting aside allegations of concealment of death of plaintiff during settlement of a personal injury claim; holding that failure to substitute the proper party under Rule 25 of the Federal Rules of Civil Procedure led the court to "enter an order of settlement for a non-existent party").
75. MINN. R. CIV. P. (effective Jan. 1, 1952).
76. The information in this paragraph is drawn largely from conversations of Roger C. Cramton with Professor John J. Cound of the University of Minnesota Law School.
77. MINN. R. CIV. P. 35.02. Under the regime of broad discovery, the plaintiffs physician-patient privilege is essentially waived by the plaintiff putting physical condition in issue in the law suit.
78. See Lauren K Robel, Mandatory Disclosure and Local Abrogation: In Search of a Theory for Optional Rules, 14 Rev. Litig. 49 (1994).
79. FED. R. CIV. P. 26(a) (as amended in 1993).
80. See Robel, supra note 64, for a discussion of local rules opting out of Rule 26. Professor John J. Cound has informed the authors that the United States District Court of Minnesota has no local rule displacing Rule 26, which is in effect in the Minnesota federal court.
81. FED. R. CIV. P. 26(a) (as amended in 1993).
82. See, e.g., MODEL RULES, supra note 10, Rule 3.1 (dealing with frivolous assertions), Rule 3.2 (dealing with delay as a tactic), and Rule 3.4(d) (dealing with discovery abuse), which are stated in vague terms and contain clauses that make their application in disciplinary proceedings difficult. For example, Rule 3.2 permits lawyer tactics that cause delay if they are "consistent with the interests of the client;" and Rule 4.4 prohibits an attorney from "embarrass[ing], delay[ing] or burden[ing] a third person," only when they "have no substantial other purpose." Consequently, professional discipline for excessive zeal in civil litigation is virtually nonexistent. Yet similar conduct is often met, in both federal and state court proceedings, with judicial sanctions that are a more powerful deterrent. Since 1983, when it was stiffened, Rule 11 of the Federal Rules of Civil Procedure and its state analogs have had a much greater impact on lawyer conduct than the comparable provisions of state ethics codes.
83. Rule 35 provides the formal mechanism by which a plaintiff, when compelled to submit to a physical examination, may obtain the examination report. See FED. R. CIV. P. 35. See generally Sibbach v. Wilson & Co., 312 U.S. 1 (1941) (holding that Rule 35 did not abridge substantive rights and was therefore authorized by the Rules Enabling Act).
84. In addition to the troublesome client-fraud situation, consider the hypothetical situations based on real cases that are discussed infra at text accompanying notes 151-53. Each involve severe tension between lawyer confidentiality and ordinary morality.
85. See MODEL RULES, supra note 10, Rule 1.4 (communication); Rule 1.1 (competence); Rule 1.3 (diligence).
86. See id. Rule 1.4.
87. See id. Rule 1.2(a).
88. See id. Rule 2.1.
89. See id. Rules 1.2(d), 1.16(a).
90. Rule 2.1 requires a lawyer to "exercise independent judgment" and "render candid advice." Id. Rule 2.1. It permits the lawyer, in rendering advice, "to refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation." Id.
91. THOMAS L. SHAFFER & ROBERT F. COCHRAN, JR., LAWYERS, CLIENTS, AND MORAL RESPONSIBILITY 1 (1994).
92. Shaffer and Cochran also state that "lawyer-client decisions usually benefit some people at the expense of others," and that moral issues are nearly always embedded in such choices. See also Robert P. Lawry, Damned and Damnable: A Lawyer's Moral Duties with Life on the Line, 29 LOY. L.A. L. REV. 1641, 1642-46 (1996) (discussing Shaffer and Cochran's conception of morality in a lawyer's decisionmaking process).
93. Cf. Robert P. Lawry, Cross-Examining the Truthful Witness: The Ideal Within the Central Moral Tradition of Lawyering, 100 DICK. L. REV. 563 (1996);
94. Robert P. Lawry, The Central Moral Tradition of Lawyering, 19 HOFSTRA L. REV. 311 (1990) (discussing the "the central moral tradition of lawyering" and drawing on Professor Lon Fuller's views as expressed in the AALS-ABA Joint Conference Report on Professional Responsibility (1958));
95. see also John M. A. DiPippa, Lon Fuller, The Model Code and the Model Rules, 37 S. TEX. L. REV. 303 (1996);
96. Thomas L. Shaffer, Legal Ethics and the Good Client, 36 CATH. U. L. REV. 319 (1987);
97. Thomas L. Shaffer, The Unique, Novel and Unsound Adversary Ethic, 41 VAND. L. REV. 697, 701 (1988) [hereinafter Shaffer, Adversary Ethic] (arguing that earlier traditions of lawyering were modified in the twentieth century).
98. All of the world's major religions view the taking of an innocent life as among the greatest of moral wrongs. Moral philosophies that are secular and humanistic in character take the same position. Disagreement exists concerning important details, including what constitutes innocence, self-defense, or permissible killing (e.g., the morality of capital punishment), and whether or what distinctions should be drawn between killing and letting die. But the basic proposition of respect for life is more universally accepted than perhaps any other moral tenet.
99. See HAZARD ET AL., supra note 8, at 323-25 (discussing the importance of these factors in making moral choices); see also W. William Hodes, Introduction: What Ought to Be Done - What Can Done - When the Wrong Person Is in Jail or About to Be Executed?, 29 LOY. L. A. L. REV. 1547, 1555-63 (1996).
100. See RESTATEMENT (SECOND) OF TORTS § 314 (1965);
101. KEETON ET AL., supra note 20, § 56, at 375-77. Both sources address the common law rule that one person owes another no duty to take active or affirmative steps for the other's protection. See also John M. Adler, Relying Upon the Reasonableness of Strangers: Some Observations About the Current State of Common Law Duties to Aid or Protect Others, 1991 WIS. L. REV. 867;
102. Ernest J. Weinrib, The Case for a Duty to Rescue, 90 YALE L.J. 247 (1980). Minnesota, it should be noted, is one of the few states that has enacted a criminal statute imposing a duty to rescue. See MINN. STAT. § 604.05.
103. See 2 Killed Friday in Car Collision, PARK REGION ECHO (Alexandria, Minn.), Aug. 26, 1956 at 1; Telephone Interview by Lori P. Knowles with Leona Zimmerman (Sept. 17, 1997).
104. Telephone Interview with Leona Zimmerman, supra note 82.
105. A few cases even impose a legal obligation in factual situations similar to that in the Spaulding case. See, e.g., Farwell v. Keaton, 240 N.W.2d 217 (Mich. 1976). In Farwell, the court held that a social companion who knows that his friend has been beaten unconscious by others has a duty to render reasonable care under all the circumstances. "Implicit in such a common undertaking is the understanding that one will render assistance to the other when he is in peril if he can do so without endangering himself." Id. at 222. The special relationship of employer-employee also leads to a duty of care: an employer must take reasonable affirmative steps to assist an injured employee, at least where the injury occurred in the course of the employment. See RESTATEMENT (SECOND) OF TORTS § 314B (1965).
106. See Harper v. Herman, 499 N.W.2d 472 (Minn. 1993) (en banc) (holding that defendant, the owner and operator of a private boat on a Minnesota lake, had no duty to warn plaintiff, a guest on the boat, that water surrounding the boat was too shallow for diving).
107. See, e.g., MINN. STAT. ANN. § 169.09 (West 1986 & 1998 Supp.) (requiring a driver involved in a motor vehicle accident to stop, report, and assist injured persons). The motor vehicle statutes are a specific application of the general rule that an actor who "knows or has reason to know that by his conduct, he has caused such bodily harm to another as to make him helpless and in danger of further harm [has] a duty to exercise reasonable care to prevent such further harm." RESTATEMENT (SECOND) OF TORTS § 322 (1965).
108. This conclusion rests on the absence of decisions holding that the assistance obligation is a continuing one, and on discussions of the question with Professors James A. Henderson, Jr. and Aaron Twerski.
109. See MODEL RULES, supra note 10, Rule 1.2(a) (requiring a lawyer to "abide by a client's decisions concerning the objectives of representation" and listing some matters on which the client has decisional authority).
110. See id. (requiring a lawyer to "consult with the client as to the means by which [the client's objectives] are to be pursued"). For discussion of the allocation of decisionmaking authority between lawyer and client, see RESTATEMENT OF LAW GOVERNING LAWYERS, supra note 12, sections 32 to 34 (Proposed Final Draft No.1, 1996).
111. See, e.g., Link v. Wabash R.R. Co., 370 U.S. 626 (1962) (client bound by lawyer's failure to attend a pretrial conference which led to involuntary dismissal of client's FELA claim); Blanton v. Womancare, Inc., 696 P.2d 645, 650 (Cal. 1985) (en bane) (discussing broad authority of trial lawyer in civil case to bind the client by lawyer's choices).
112. See Blanton, 696 P.2d at 650.
113. MODEL RULES, supra note 10, Rule 1.2 cmt. 1.
114. See id. Rule 1.4 (requiring a lawyer to keep a client reasonably informed, promptly comply with reasonable requests for information, and "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation"); id. Rule 2.1 (requiring the lawyer to "exercise independent professional judgment and render candid advice," and permitting the lawyer to refer to moral and other factors that may be relevant to the client's situation).
115. See William T. Barker, Insurance Defense Ethics and the Liability Insurance Bargain, 4 CONN. INS. L.J. 75, 83-84 (1997);
116. Robert H. Jerry, II, Consent, Contract, and the Responsibilities of Insurance Defense Counsel, 4 CONN. INS. L.J. 153, 163-64 (1997).
117. See RESTATEMENT OF LAW GOVERNING LAWYERS, supra note 12, § 215 (Compensation or Direction by Third Persons) (dealing with the insured-insurer-defense counsel triangle).
118. The comments and reporter's notes contain a brief discussion of the issues and cite principal articles and authorities. For the argument that the insured should be considered as the sole client, see Robert O'Malley, Ethics Principles for the Insurer, the Insured and Defense Counsel: The Eternal Triangle Reformed, 66 TUL. L. REV. 511, 522 (1991);
119. see also Symposium, Liability Insurance Conflicts and Professional Responsibility, 4 CONN. INS. L.J. 1 (1997).
120. See Charles Silver, Does Insurance Defense Counsel Represent the Company or the Insured?, 72 TEX. L. REV. 1483, 1602-14 (1994) (arguing the dual-client view).
121. The reporter's note to Restatement of the Law Governing Lawyers section 215 states that "[w]hen a dispute between insured and insurer exists over settlement, the duties of a defense lawyer representing the insured are controlled, not by the policy, but by the lawyer's professional duties . . . ." RESTATEMENT OF LAW GOVERNING LAWYERS, supra note 12, § 215. See, e.g., Rogers v. Robson, Masters, Ryan, Brummund & Belom, 407 N.E.2d 47 (Ill. 1980) (holding that lawyers designated by a medical-malpractice insurer to defend a doctor had a duty to tell the doctor of the insurer's intent to settle the claim within policy limits contrary to the doctor's insistence against settlement, even though the policy gave the insurer authority to settle).
122. See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? 1-28 (1974) (contrasting the "traditional model" of the lawyer-client relationship with the emerging "participatory model" in which the lawyer and client are equal participants in a joint endeavor); see also MODEL RULES, supra note 10, Rule 1.2 cmt. 1 (stating that "in many cases the client-lawyer relationship partakes of a joint undertaking").
123. Telephone Interview by Lori P. Knowles with Richard L. Pemberton (Apr. 22, 1998).
124. See ROSENTHAL, supra note 98, at 7-28.
125. See, e.g., Susan Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307, 321-33 (1980).
126. Telephone Interview with Richard L. Pemberton, supra note 99.
127. See id.
128. For comprehensive discussion of conflict of interest issues in liability insurance defense representation, see Symposium, Liability Insurance Conflicts and Professional Responsibility, 4 CONN. INS. L.J. 1 (1997), especially the articles by Nancy J. Moore, Thomas D. Morgan, Stephen L. Pepper, and Kent D. Syverud.
129. See id.
130. Conversations between Lori P. Knowles and surviving parties and lawyers.
131. Telephone Interview with Leona Zimmerman, supra note 82.
132. See Marvin W. Mindes, Trickster, Hero and Helper: A Report on Lawyer Image, 1982 AM. B. FOUND. RES. J. 177 (reporting tendency of lawyers to believe, erroneously, that their clients have selfish motives).
133. Pepper, supra note 7, at 1606.
134. See William H. Simon, The Ideology of Advocacy, 1978 WIS. L. REV. 30, 53-54. The author states that: The [lawyer's] strategy [for dealing with the dilemma of the difficulty of determining client ends without shaping them] is to impute certain basic ends to the client at the outset and [then] to work to advance these imputed ends." Thus, the personal injury claimant is presumed to be interested only in the largest award, and the criminal defendant is presumed to be interested only in being relieved of all responsibility for his conduct. Imputed ends are invariably extremely selfish ones. See id.
135. Mindes, supra note 108 (setting forth an empirical study finding that the attitudes of clients and lawyers are quite divergent on the question of client needs or wants: the clients want a helpful, communicative and caring lawyer; lawyers, however, take a much more cynical view of their client's desires, believing that clients want a trickster).
136. Model Rule 1.16(a) requires a lawyer to withdraw when representation "will result in violation of the rules of professional conduct or other law," "the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client," or "the lawyer is discharged."
137. See id. Rule 1.16(b).
138. Unlike Model Rule 1.6(b), DR 2-110(A)(2) of the Model Code provided that a lawyer could not withdraw "until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client." Model Rule 1.6(b)(3) permits a lawyer to withdraw when a client "insists on pursuing an objective that the lawyer considers repugnant or imprudent," while DR 2-110(C)(1)(e) of the Model Code, in addition to the requirements mentioned above, limited permissive withdrawal to non-litigation situations in which a client insists "that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer." See RESTATEMENT OF LAW GOVERNING LAWYERS, supra note 12, § 44(3)(f) & cmt. j (Proposed Final Draft No. 1, March 29, 1996).
139. In practice settings in which lawyers tend to trust each other, Dr. Hannah's report or a summary of its content could probably have been obtained by informal request. In addition, pointed questions at the settlement conference as to whether its content was the same as that of the plaintiff's experts presumably would have elicited truthful responses. If Arveson had misrepresented the content of Dr. Hannah's report during the settlement discussions, the settlement could be set aside on fraud grounds and damages awarded. The fraud claim lies against both the settling party and the lawyer who assists the fraud. See, e.g., Slotkin v. Citizens Cas. Co., 614 F.2d 301, 312-15 (2d Cir. 1979) (lawyer liable to non-client for obtaining settlement by recklessly and falsely representing that client had only $200,000 in insurance coverage); see also Bonavire v. Wampler, 779 F.2d 1011, 1014-15 (4th Cir. 1985) (liability if lawyer misrepresented client's honesty and experience). Because of the ability of some lawyers to mislead without making affirmative misrepresentations, the safest course is examination of the full report after formal or informal request.
140. The trial court's memorandum in Spaulding suggested this possibility. 116 N.W.2d at 709. For discussion of legal malpractice generally, see HAZARD ET AL., supra note 8, at 174-93.
141. In addition, in rural Minnesota in the late 1950s, Spaulding or his successors in interest would have encountered substantial difficulty in finding a lawyer who would pursue a medical malpractice case against a local physician, and even greater difficulty in finding one who would undertake a legal malpractice case. Today, such representation is much more readily available.
142. See RHODE & LUBAN, supra note 8, at 253 (blaming Spaulding's lawyer "amount[s] to blaming a murder victim's bodyguard for falling asleep on the job rather than blaming the murderer").
143. See AMA COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, CODE OF MEDICAL ETHICS § 5.09 (1996-97 ed.) (physician's examination of employee for employer does not create a doctor-patient relationship when it involves no treatment, but physician must still disclose important health information to employee).
144. Rules of medical ethics contain broader exceptions to confidentiality than those applicable to lawyers. Physicians are required by ethics rules and other law to disclose patient information to public authorities under a variety of circumstances (e.g., suspicious deaths, gun shot wounds, and communicable diseases) or to those threatened by serious disease (e.g., disclosure to sexual partner of patient infected with AIDS virus). Nothing in the rules of medical ethics would prohibit Dr. Hannah from informing Spaulding or Spaulding's treating physicians of his condition. See id.
145. Courts have recognized a common law duty of psychotherapists to take reasonable steps to prevent harm to a specific third person when a patient threatens death or substantial injury to that person. See Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334 (Cal. 1976). Tarasoff is followed in a number of other jurisdictions. See, e.g., Peck v. Counseling Servs., 499 A.2d 422 (Vt. 1985) (extending the Tarasoff duty in favor of the patient's parents, whose barn was burned down). For a review of case developments involving the Tarasoff duty, see D.L. Rosenhan et al., Warning Third Parties: The Ripple Effect of Tarasoff, 24 PAC. L.J. 1165 (1993).
146. For discussion of the liability of examining physicians, see Malcolm Meyn, Jr., The Liability of Physicians Who Examine for Third Parties, 19 N. KY. L. REV. 333 (1992).
147. Meyn states that an examining physician (one who does not have a physician-patient relationship with the person examined) has a common law duty "to disclose to the examinee any life threatening or serious medical problem discovered during the course of the examination." Id. at 338. This duty of care, Meyn states, does not extend to discovery of unknown conditions. See also Neil J. Squillante, Expanding the Potential Tort Liability of Physicians: A Legal Portrait of "Nontraditional Patients" and Proposals for Change, 40 UCLA L. REV. 1617 (1993) (criticizing decisions holding that an examining physician owes no duty to inform the examined person of an observed health problem).
148. CHARLES L. BOSK, FORGIVE AND REMEMBER: MANAGING MEDICAL FAILURE (1979) (discussing the way surgeons recognize, manage, control and sometimes deny professional failure).
149. See, e.g., ROSENTHAL, supra note 98; Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decisionmaking and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003, 1003.
150. See Silver, supra note 96.
151. See, e.g., MARY ANNE GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY (1994);
152. ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993);
153. SOL LINOWITZ (WITH MARTIN MAYER), THE BETRAYED PROFESSION: LAWYERING AT THE END OF THE TWENTIETH CENTURY (1994).
154. For discussion of the work product immunity, see RESTATEMENT OF LAW GOVERNING LAWYERS, supra note 12, sections 136 to 138 (Proposed Final Draft No. 1, March 29, 1997). The reporter's notes to these sections collect relevant judicial and scholarly authorities.
155. See id. §§ 118-35 (discussing the scope of the attorney-client privilege, its application to organizational and multiple clients, duration and waiver, exceptions, and invoking the privilege). See generally CHRISTOPHER B. MUELLER & LAIRD C. KIRPATRICK, MODERN EVIDENCE: DOCTRINE AND PRACTICE, §§ 5.9-5.30, at 459-585 (1995).
156. For the relationship of the attorney-client privilege to constitutional rights, especially the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to the assistance of counsel, see RESTATEMENT OF LAW GOVERNING LAWYERS, supra note 12, section 118, reporter's note to comment c and materials cited.
157. The most frequently cited decision stating the utilitarian rationale is Upjohn v. United States, 449 U.S. 383, 389 (1981) (justifying the attorney-client privilege because it permits a lawyer to provide sound advice and advocacy with effects that are in the public interest: channeling client conduct along lawful paths and enhancing the reliability of adversary adjudication).
158. See MONROE H. FREEDMAN, UNDERSTANDING LAWYERS' ETHICS 13-17, 87-108 (1990); LUBAN, supra note 7, at 192-97; MUELLER & KIRPATRICK, supra note 127, at 357-58.
159. See, e.g., HAZARD ET AL., supra note 8, at 221-22, 243-45.
160. In addition to the crime-fraud materials discussed in note 134, infra, the rationale for the privilege expressed in the Upjohn case also emphasizes the role of the privilege in assuring the public values of lawful advice and sound administration of justice. 449 U.S. at 389.
161. See MUELLER & KIRKPATRICK, supra note 127, at 419-26.
162. For discussion of the crime-fraud exception to the attorney-client privilege, see RESTATEMENT OF LAW GOVERNING LAWYERS, supra note 12, section 132. The classic expression of the underlying principle is that of Justice Cardozo in Clark v. United States, 289 U.S. 1, 15 (1933): "The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law."
163. See Model Rule 1.2(d) and its predecessor in the Model Code, DR 7-102(A)(7). One or the other of these provisions is included in the professional codes of every state except California, which has its own comparable provision. See CALIF. RULES OF PROFESSIONAL CONDUCT Rule 3-210 (1996) (lawyer may not advise the violation of law).
164. In 1997, according to the ALAS Memorandum, supra note 11, 31 jurisdictions either permitted or required a lawyer to disclose a client's intention to commit any future crime, and at least 40 jurisdictions permitted or required a lawyer to disclose the client's intention to commit a criminal fraud likely to result in injury to the financial interest or property of another person.
165. See RESTATEMENT OF LAW GOVERNING LAWYERS, supra note 12, §§ 111-17A (restating the professional duty of confidentiality); see also HAZARD ET AL., supra note 8, at 220-22, 280-286.
166. See RESTATEMENT (SECOND) OF AGENCY § 395, 388 cmt. a (1958) (prohibiting self-dealing in principal's information); see also MODEL RULES, supra note 10, Rule 1.8(b) (prohibiting a lawyer from using "information relating to representation of a client to the disadvantage of the client unless the client consents after consultation" or unless disclosure is permitted or required by other rules).
167. Agency law requires an agent "not to use or to communicate information confidentially given him by the principal or acquired by him during the course of or on account of his agency," RESTATEMENT (SECOND) OF AGENCY § 395 (1958). This is subject to a power of the agent to reveal information when necessary to protect the superior interest of a third person. See id. & cmt. f.
168. Lawry, supra note 78.
169. See MORGAN & ROTUNDA STANDARDS, supra note 50 (containing the texts of the Canons and the Model Code).
170. See HAZARD ET AL., supra note 8, at 297. The 1974 amendment and an ethics opinion interpreting it are discussed at pages 294-300. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 341 (1975), interpreting the 1974 "except" clause as preventing disclosure of non-privileged as well as privileged information, suggested that the amendment was necessary to clarify confusion arising from the inconsistency of DR 7-102(B)(1) with confidentiality provisions and prior ethics opinions. Yet the text of both the Canons and the Model Code explicitly required disclosure.
171. For discussion of the ABA's 1983 action, see Schneyer, supra note 10, at 718-23. Schneyer's illuminating study of the legislative history of the adoption of the Model Rules provides information confirming a shift in attitudes toward confidentiality during the 1970s, especially on the part of the corporate defense bar. The elite organization of this group, the American College of Trial Lawyers (ACTL), which led the assault on the client fraud exception to confidentiality recommended by the Kutak Commission, had its own Code of Trial Conduct (1972) that provided, in language following the traditional exceptions, "that a lawyer is not "bound to respect' confidences concerning his client's intention to commit any crime;" indeed, the ACTL Code stated that the lawyer "should [disclose] if injury to person or property is likely to ensue." Id. at 720. Schneyer suggests that ACTL's opposition to the Kutak version of Model Rule 1.6(b), which essentially restated its own ethics code, reflected changes in the profession and a fear that the new rule, unlike its own code, might have "real legal bite." Id.
172. See ALAS Memorandum, supra note 11.
173. See Hazard, supra note 54, at 292 (stating that "the law cannot license some of its subjects, least of all 'lawyers,' to assist in the commission or concealment of transactions that it defines as serious legal wrongs, such as fraud."); see also HAZARD ET AL., supra note 8 (discussing the tortured history of the ABA's handling of client fraud).
174. A successor in interest of the client, such as a bankruptcy trustee, is likely to waive any privileges in an effort to recover assets for the insolvent entity. See, e.g., Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343 (1985) (holding that successor in control of an entity client can waive the entity's attorney-client privilege over the objections of the officers who consulted with the entity's lawyer). If waiver does not occur, the crime-fraud exception of the attorney-client privilege may be successfully invoked by a showing that the client consulted a lawyer to obtain advice concerning the commission of a crime or fraud. See, e.g., United States v. Hodge & Zweig, 548 F.2d 1347 (9th Cir. 1977). Finally, if the lawyer is charged by defrauded persons, the lawyer is likely to reveal information relying on the self-defense exception. See, e.g., Meyerhofer v. Empire Fire & Marine Ins. Co., 497 F.2d 1190 (2d Cir. 1974).
175. The ABA Committee on Ethics and Public Responsibility, unsuccessful in 1991 in obtaining an amendment broadening the exceptions to confidentiality of Model Rule 1.6(b), has interpreted the rule to permit limited disclosure by a lawyer who learns that his client is using his services to perpetrate a fraud on a third person. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 92-366 (1992) (relying on provisions of the rules prohibiting unlawful assistance and requiring withdrawal, along with the "noisy withdrawal" language of comment [15] of Rule 1.6, to prevent prospective client fraud).
176. Commentators and ABA insiders have criticized the ABA's position as incoherent, confusing, and unworkable. See HAZARD ET AL., supra note 8, at 297-300; Ronald D. Rotunda, The Notice of Withdrawal and the New Model Rules of Professional Conduct: Blowing the Whistle and Waving the Red Flag, 63 OR. L. REV. 455 (1984); 7 ABA/BNA LAW. MANUAL PROF. CONDUCT 256, 258 (Aug. 28, 1991) (confidentiality provisions of Model Rules were "unworkable" and unfairly exposed lawyers to potential civil liability and criminal prosecution).
177. See RESTATEMENT OF LAW GOVERNING LAWYERS, supra note 12, § 117B ("Using or Disclosing Information to Prevent, Rectify or Mitigate Substantial Financial Loss") (Proposed Final Draft No. 2, 1998).
178. The Commission is chaired by E. Norman Veasey, Chief Justice, Delaware Supreme Court and has 12 other members. Its report and recommendation are expected by the ABA annual meeting in August 2000.
179. A valuable recent symposium discusses the death row scenario. See Symposium, Executing the Wrong Person: The Professionals' Ethical Dilemmas, 29
180. This scenario is drawn from a California ethics opinion concluding that the lawyer is not permitted to disclose under these circumstances. Cal. State Bar Standing Comm. on Professional Responsibility and Conduct, Formal Op. 1981-58; see also Roger C. Cramton, Proposed legislation Concerning a Lawyer's Duty of Confidentiality, 22 PEPP. L. REV. 1467, 1468 (1995);
181. Fred Zacharias, Privilege and Confidentiality in California, 28 U.C. DAVIS L. REV. 367 (1995).
182. A few exceptions to this statement may be found. See, for example, the Massachusetts version of Rule 1.6(b), which permits disclosure "to prevent the wrongful execution or incarceration of another." MASS. RULES OF PROFESSIONAL CONDUCT Rule 1.6(b)(1) (1998).
183. These conditions resemble those stated in the RESTATEMENT OF LAW GOVERNING LAWYERS, supra note 12, at 117A(2): Before using or disclosing information pursuant to this Section, the lawyer must, if feasible, make a good faith effort to persuade the client either not to act or, if the client or another person has already acted, to warn the victim or take other action to prevent the harm and, if relevant, to advise the client of the lawyer's ability to use or disclose pursuant to this Section and the consequences thereof.
184. Generally, a failure to act would be within existing exceptions to confidentiality only when other law makes such failure a crime or fraud (e.g., a statute making it a crime to fail to report child abuse).
185. See ALAS Memorandum, supra note 11.
186. Model Rule 1.6(b)(2) and DR 4-104(C)(4) of the Model Code permit a lawyer to disclose client information to defend against an accusation of wrongful conduct or to collect a fee. In California, which has no professional rule dealing with confidentiality, judicial decisions have relied on the self-defense exception to the statutory attorney-client privilege as supporting lawyer disclosure for self-defense and fee collection. See Roger C. Cramton, Sure Enough? State Bar's Proposed Rule Only Perpetuates California's Confidentiality Confusion, L.A. DAILY J., Apr. 2, 1997, at 6 [hereinafter Cramton, Sure Enough?];
187. Roger C. Cramton, Trade Secrets: Exceptions to the Duty of Confidentiality, L.A. DAILY J., July 14, 1998, at 17 [hereinafter Cramton, Trade Secrets].
188. For discussion of the competing policies governing exceptions to lawyer confidentiality, see SISSELA BOK, SECRETS passim (1982); LUBAN, supra note 7, at 177-223; Deborah L. Rhode, Ethical Perspectives on Legal Practice 37 STAN. L. REV. 589, 612-17 (1985).
189. See supra text accompanying notes 137-150.
190. See supra text accompanying notes 151-157.
191. See MODEL RULES, supra note 10, Rule 3.3(a)(3). The ALAS memorandum, supra note 11, states that 38 states require disclosure in this situation.
192. MASS. RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1998).
193. See, e.g., FREEDMAN, supra note 130, at 87-108. Freedman's argument for nearly absolute confidentiality relies heavily on the special constitutional protections afforded criminal defendants. See id. at 15-26. The alternative ethics code drafted by Professor Freedman contained no exceptions to confidentiality other than one to protect innocent human life. See AMERICAN LAWYER'S CODE OF CONDUCT, Rule 1.4;
194. Monroe H. Freedman, Lawyer-Client Confidences Under the A.B.A. Model Rules: Ethical Rules Without Ethical Reason, CRIM. JUST. ETHICS 3, Summer/Fall 1984, at 3.
195. See, e.g., Robert A. Burt, Conflict and Trust Between Attorney and Client, 69 GEO. L.J. 1015 (1981) (arguing that trust in the relationship would actually be enhanced by expanding exceptions to confidentiality);
196. Austin Sarat, Lawyers and Clients: Putting Professional Service on the Agenda of Legal Education, 41 J. LEGAL EDUC. 43 (1991) (summarizing a study of lawyer-client relationship in matrimonial representation).
197. See Note, Functional Overlap Between Lawyers and Other Professionals: Its Implications for the Privileged Communication Doctrine, 71 YALE L.J. 1226, 1232 (1962) (reporting empirical findings that lawyers are more likely than non-lawyers to believe that the privilege encourages client disclosures and that most non-lawyers are unaware of the privilege or erroneously assume that it extends to communications with a large number of other professionals as well).
198. See Fred C. Zacharias, Rethinking Confidentiality, 74 IOWA L. REV. 351, 379-96 (1989). This survey of New York lawyers' and clients' responses to various hypothetical situations found that neither lawyers nor clients were familiar with the details of the attorney-client privilege or the professional duty of confidentiality. Both lawyers and clients believed that disclosure was permissible in a number of situations, like that in Spaulding, in which ethics rules prohibit disclosure; and only a small percentage of clients felt that allowing such disclosure would make them less likely to use a lawyer's services.
199. This was the situation in the Upjohn case itself. Upjohn Co. v. United States, 449 U.S. 383 (1981). A large multinational corporation, having learned of law violations by its agents, sought to conceal this information from federal regulatory agencies, perhaps planning to reveal some of it selectively if that proved to be in the company's interest. If the information had been contained in an auditor's report, it would not have been protected. See United States v. Arthur Young & Co., 465 U.S. 805 (1984). The Court's confidence in Upjohn that the government could obtain the underlying information from relevant witnesses was a dubious one: Upjohn had instructed its employees not to discuss the matters involved with anyone, and informal contacts with them by government lawyers presumably would be attacked as a violation of the anti-contact rule, which prohibits a lawyer from communicating with a person known to be represented by counsel. See MODEL RULES, supra note 10, Rule 4.2. Moreover, the employees involved were scattered around the globe and it is not clear that their testimony could be obtained by compulsory process without extraordinary effort or, in the case of foreign nationals, that it would be available at all.
200. See, e.g., Marc Galanter, Why the Haves Come Out Ahead, 9 L. & SOC'Y REV. 95 (1974).
201. Daniel Fischel argues that "[c]onfidentiality rules - the ethical duty of confidentiality, the attorney-client privilege, and the work-product doctrine - benefit lawyers but are of dubious value to clients and society as a whole. Absent some more compelling justification, for their existence than has been advanced to date, these doctrines should be abolished." Daniel R. Fischel, Lawyers and Confidentiality, 65 U. CHI. L. REV. 1, 33 (1998). We reject this extreme proposal. Nevertheless, Fischel's subordinate argument that confidentiality rules in the corporate context "either have no effect [on law observance] or decrease the level of legal compliance," id. at 28-32, has considerable force and supports our conclusion that broadened exceptions would be in the public interest.
202. Bar groups also worry that expanding exceptions to confidentiality will expose lawyers to increased liability to clients and non-clients. However, in the most frequent situation involved - prevention or rectification of client fraud - liability is already a worrisome reality. Lawyer liability to non-clients for failure to prevent or rectify client fraud is expanding without seeming regard to whether the ethics code in a jurisdiction prohibits, permits or mandates lawyer disclosure. Even more striking, there is no case holding a lawyer liable to a third person for failing to prevent a death or serious physical harm even though ethics codes in nearly all states permit disclosure and a substantial number require it. In short, the rules of professional conduct and civil liability appear to be developing along separate tracks. See infra note 178 and accompanying text.
203. Despite the prevalence of whistleblower statutes applying to state and federal employees, including lawyers, and to agents of government contractors, there are very few, if any, published reports of lawyers acting in this capacity.
204. See LUBAN, supra note 7, at 177-205 (discussing "the lawyer's extraordinary duty of confidentiality"). For a critique of lawyers' adversary zeal on behalf of clients, see MARVIN E. FRANKEL, PARTISAN JUSTICE 1-68 (1980);
205. Shaffer, Adversary Ethic, supra note 78, at 698-703.
206. The choice of detailed rules as distinct from general standards that confer discretion on the applier and interpreter is the topic of a large jurisprudential and philosophical literature. One modern treatment of the subject, focusing on contract law, is Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976).
207. Emerging case law indicates that a lawyer risks civil liability to a defrauded party if the lawyer makes false or misleading representations in facilitating a client transaction with a third person, or if the lawyer learns of the client's fraud but takes no action other than silent withdrawal. See, e.g., Federal Deposit Ins. Corp. v. O'Melveny & Myers, 969 F.2d 744 (9th Cir. 1992) (law firm liable to successor in interest of a failed thrift for failing to make "a reasonable, independent investigation" of indications that client was entering into real estate syndications when in unsound financial condition), rev'd and remanded on other grounds, 512 U.S. 79 (1994); Greycas, Inc. v. Proud, 826 F.2d 1560, 1565 (7th Cir. 1987) (lawyer liable to non-client for negligence in preparing a legal opinion for the non-client in connection with a client transaction); In re American Continental Corp./Lincoln Sav. & Loan Sec. Litig., 794 F. Supp. 1424, 1452 (D. Ariz. 1992) (law firm liable for aiding and abetting client's fraud on investors if it learned of the fraud and continued to provide legal assistance); Petrillo v. Bachenberg, 655 A.2d 1354, 1359-61 (N.J. 1995) (lawyer for seller of real estate owed duty of care to buyer to avoid misleading the buyer concerning suitability of land for a septic system). But cf. Schatz v. Rosenberg, 943 F.2d 485, 493-94 (4th Cir. 1991) (law firm not liable for transmitting client's false representations of its net worth to a lender in a transaction handled by the law firm). It is ironic that in the situation in which ethics rules provide for disclosure (criminal acts of a client that threaten another's life), there is no reported decision providing for civil liability of the lawyer for failure to disclose, but cf. Hawkins v. King County, 602 P.2d 361 (Wash. Ct. App. 1979) (noting in dictum that in an appropriate case a lawyer might be liable for failing to warn the client's intended victim), while in the client fraud situations liability is often imposed even though ABA Model Rule 1.6(b) and the ethics codes of about ten states would prohibit a lawyer from disclosing. See MODEL RULES, supra note 10, Rule 1.6(b).
208. Hodes, supra note 80, at 1560-81 ("[T]he specific context of each case . . . colors what can be done to alleviate the tragedy, which affects what ought to be done.").
209. See HAZARD ET AL., supra note 8, at 323-25.
210. Hodes, supra note 80, at 1561.
211. An analogy is suggestive. A lawyer representing an organization may discover that those in control are engaged in law violations that are likely to be harmful to the best interests of the entity. Without raising the question with the governing board of the organization, the lawyer silently withdraws. In subsequent litigation against the lawyer either by successors in interest or third persons harmed by the illegal conduct, the lawyer's claim that raising the issue with the governing board would have been futile is generally rejected. See e.g., In re American Continental Corp., 794 F. Supp. at 1453 (firm's obligation to take steps to stop an ongoing fraud in which its own services were involved is not excused because those in control would not have responded; "client wrongdoing cannot negate an attorney's fiduciary duty").
212. Purcell v. District Attorney, 676 N.E.2d 436, 438 (Mass. 1997) (per curiam).
213. See, for example, MUELLER & KIRKPATRICK, supra note 127, at 440-44, stating that "[t]he client is the holder of the privilege, and the attorney cannot waive it over the client's objection." Actual or implied authority of the attorney to waive the privilege "is determined by the customary rules of the law of agency." Involuntary disclosures (e.g., where privileged matter is procured by fraud, deception, theft or an erroneous court determination of no privilege) do not result in loss of the privilege.
214. 544 P.2d 1084 (Ariz. 1976) (per curiam) (reversing conviction and remanding for a new trial); State v. Macumber, 582 P.2d 162 (Ariz. 1978) (affirming conviction after second trial). The case is thoroughly discussed in Hodes, supra note 80.
215. See Macumber, 544 P.2d at 1087 (Holohan, J., concurring specially). The lawyers involved sought and obtained an ethics opinion concluding that disclosure was permissible even though not literally covered by the exceptions in the Model Code of Professional Responsibility, then in effect in Arizona. The client had not indicated an intention to commit a crime or fraud (DR 4-101(C)(3)) nor had the client perpetrated a fraud upon a tribunal (DR 7-102(B)(1)). The situation arose, however, after the client's death, who therefore could not be incriminated by the disclosure.
216. See Macumber, 544 P.2d at 1087 (Holohan, J., concurring specially) (lawyer's permissible disclosure to authorities of client's information that he was responsible for a crime for which another person had been convicted did not waive the client's attorney-client privilege); see also State v. Valdez, 618 P.2d 1234, 1235 (N.M. 1980) (holding that lawyer could not testify that his client had confessed to a robbery for which the defendant had been convicted). Macumber and other cases dealing with the "death-row scenario" are thoroughly and ably discussed in Hodes, supra note 80.
217. See People v. Fentress, 425 N.Y.S.2d 485 (N.Y. Cty. Ct. 1980) (holding evidence of corpus delicti admissible because client had waived the privilege in accepting the lawyer's advice that police be called to the scene of the crime). N.Y. C.P.L.R. 4503 (1977) provides that "evidence of a confidential communication made between the attorney . . . and the client in the course of professional employment . . . and evidence resulting therefrom, shall not be disclosed [by any governmental agency in any proceeding]."
218. 676 N.E.2d 436 (Mass. 1997) (per curiam).
219. See id. at 441.
220. Telephone Interview by Lori P. Knowles with Jeffrey Purcell (Apr. 7, 1998).
221. Susan Martyn, The Restatement (3d) of the Law Governing Lawyers and the Courts, PROF. LAW. 115, 124 (1997 Symposium Issue).
222. This paragraph is identical to Model Rule 1.6(a), except for the reference to the addition of paragraph (c).
223. This new paragraph, omitted from the text of Model Rule 1.6(a), is similar to DR 4-101(0(2) of the Model Code of Professional Responsibility and to provisions in a great many states. It provides in the text of the rule a list of the situations in which disclosure of client information may be required. Comment [5] to Model Rule 1.6 stated: "A lawyer may not disclose [information relating to representation of a client] except as authorized or required by the Rules of Professional Conduct or other law."
224. This exception to confidentiality is broader than Model Rule 1.6(b)(1), which permits disclosure "to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm . . . ." Disclosure is permitted under the proposed rule whenever a person is threatened with "reasonably certain death or substantial bodily harm." The various preconditions of the Model Rule provision are omitted: the necessity of an act by the client that is criminal in character. The words "reasonably certain" are substituted for the word "imminent," following the lead of RESTATEMENT OF LAW GOVERNING LAWYERS, supra note 12, section 117A.
225. See the discussion in the text at notes 161-62, supra.
226. See the discussion in the text at notes 137-50, supra. According to the ALAS Memorandum, supra note 11, 38 states permit disclosure to prevent a client's criminal fraud and 4 states extend the permission to non-criminal fraud. Four states require a lawyer to disclose a client's prospect criminal fraud. This provision is consistent with RESTATEMENT OF LAW GOVERNING LAWYERS, supra note 12, section 117B, except that it does not limit disclosure to situations in which the lawyer's services have been used.
227. See the discussion in the text at notes 137-150, supra. This provision is consistent with the position expressed by the ALI in the RESTATEMENT OF THE LAW GOVERNING LAWYERS, supra note 12, section 117B.
228. This provision is identical to Model Rule 1.6(b)(2). A self-defense exception is found in the rules of all states except California, where the exception is supported by judicial decisions.
229. The most extreme case of silence and denial concerning issues of professional confidentiality is in California, where leaders of the bar often state that the professional duty of confidentiality is an absolute one not qualified by any exceptions. It is true that California's court rules governing lawyers' professional conduct do not deal explicitly with confidentiality, but the talk of an absolute duty ignores at least a half-dozen exceptions recognized by California case law. In addition, a recent decision of the California Supreme Court holds that all of the exceptions to California's statutory attorney-client privilege are also exceptions to the lawyer's duty of confidentiality. See General Dynamics Corp. v. Superior Court, 876 P.2d 487, 503 (Cal. 1994) (in-house lawyer's confidentiality obligations are determined by "some statute or ethical rule, such as the statutory exceptions to the attorney-client privilege . . . ."); see also People v. Cox, 809 P.2d 351 (Cal. 1991) (lawyer must reveal client's threat to harm the court or court personnel to the trial judge); Hinds v. State Bar, 119 P.2d 134 (Cal. 1941) (lawyer who learns of client's prior fraud on the court in a matrimonial proceeding must "divulge such fact to the court" if the client refuses to correct the false statement). See Cramton, Sure Enough?, supra note 157, at 6;
230. Cramton, Trade Secrets, supra note 157, at 17. For further discussion of confidentiality in California, see Cramton, supra note 152; Zacharias, supra note 152.
231. Spaulding v. Zimmerman, 116 N.W.2d 704, 710 (Minn. 1962) (emphasis added).
232. Telephone Interview by Lori P. Knowles with Robert Gislason (Sept. 18, 1997).
233. Telephone Interview with Justice Walter Rogosheske (Retired), supra note 15.
234. Letter of Richard L. Pemberton to Dr. Jay Katz, Professor of Law and Psychiatry (Nov. 30, 1981).
235. See Spaulding, 116 N.W.2d at 708.
236. Telephone Interview with Robert Gislason, supra note 198.