Meredith J. Duncan
Publisher’s Note: In light of recent controversies regarding the authenticity of memoirs, we asked a professor of law specializing in legal ethics to explain the rules that constrain a lawyer’s freedom to disclose privileged and confidential information. Her essay follows. While recognizing that some readers prefer documented sources in a work of nonfiction, David R. Dow made the decision to disguise identities of some characters to comply with ethical rules mandated by his profession.
Lawyers are ethically obligated to keep their clients’ secrets, often forever. This obligation, which places serious limitations on an attorney’s ability to write about his experiences, stems from two different bodies of law—evidence law, which defines the attorney-client privilege, and the legal ethics rules, which provide the contours of a lawyer’s duty of confidentiality.1
The evidentiary attorney-client privilege protects communication between an attorney and the client from being revealed in court or other official proceeding. 2 When a client communicates with a lawyer seeking legal advice, that communication is protected by the evidentiary privilege. Consequently, the lawyer cannot be compelled to reveal that communication unless the client consents (or another limited exception applies).3
A lawyer’s ethical duty of confidentiality is much broader than the evidentiary privilege.4 This legal norm prohibits lawyers from discussing their clients’ affairs. This duty of confidentiality protects all information relating to the representation of the client, regardless of its source.5 It prohibits an attorney from revealing any information about a client, in or outside of a courtroom, whether known to others or not, and regardless of whether the lawyer learned the information from the client or someone else. This ethical obligation means that a lawyer may not reveal information relating to a client’s matter to others unless the client agrees to its disclosure (or one of a few limited exceptions applies).6 It is primarily his duty of confidentiality that is at stake when a lawyer decides to pen a memoir.
Both the attorney-client privilege and the duty of confidentiality are driven by two essential considerations: (1) promoting candor and honesty within the attorney-client relationship7 and (2) maintaining an appearance of loyalty.8 When clients speak to their lawyers, it is desirable for clients to be as open and honest with counsel as possible, and these rules further that degree of openness. Good legal representation is facilitated by the lawyer’s knowing everything that the client knows, even if those things may be embarrasing or could be potentially harmful to the client or others.9 In an effort to ensure that a client feels safe in disclosing all the lawyer may need to know, the law protects virtually all the communication between the lawyer and the client (as long as the communication occurred in the context of the attorney-client relationship).
In some circumstances, the privilege or duty of confidentiality may yield and permit the attorney to reveal otherwise confidential information. So, for example, when revealing confidential information may prevent the client from committing a future crime, an attorney is permitted to reveal that information.10 Similarly, when the attorney’s revelation of confidential information may prevent reasonably certain death or bodily harm to another, the attorney is permitted to reveal confidential information.11 The most recently recognized exceptions to the duty of confidentiality allow for disclosure of confidential information in order to prevent a client from committing a financial or economic fraud.12 These exceptions have only recently been enacted, in response to the Enron scandal and other corporate abuses in which it was suspected that attorneys’ revelation of confidential information might have prevented vast financial ruin to thousands of people, had the revelation been allowed.
The ethical rules constraining lawyers rest on the belief that frank conversation between a lawyer and clients is aided when clients can be confident that the conversations they have with their lawyers will never be used to embarrass or injure them.13 Therefore, we assure clients that all communication with their lawyers relating to legal representation will be kept secret forever, unless they consent to disclosure. If a client dies without consenting to the disclosure of confidential information, a lawyer is bound to keep that information secret forever.14
An additional concern driving confidentiality rules is based on principles of agency law.15 A lawyer is the client’s agent. She stands as one with her client, helping the client navigate through the complexities of the legal system. The lawyer is to be her client’s advocate and counselor, single-mindedly devoted to her client. Talking to others unnecessarily about her client’s affairs evokes images of disloyalty. To keep secrets inviolate indefinitely is to be at one with the client, to show the utmost loyalty, whether to a current or former client. The ethical obligation to maintain client confidences concerns this appearance of loyalty, as do other ethics rules, such as the rules governing conflicts of interest.16 Keeping a client’s secrets until told to do otherwise is part of being loyal, even if keeping the secrets means exhibiting that loyalty beyond the client’s grave.17
Not being able to talk to family or friends, not even to a spouse, about a large part of one’s life—the details of one’s workdays—can exact a heavy toll on lawyers. Perhaps keeping clients’ secrets—particularly where the stakes are very high or the secrets are dark—helps explain the high incidence of depression, substance abuse, and suicide within the legal community, one of the highest rates among those of all professions.18
Consider the recent story of attorneys Dale Coventry and Jamie Kunz. More than twenty-five years ago, Coventry and Kunz, Cook County public defenders, were assigned to represent Andrew Wilson against murder charges.19 During that representation, Wilson confessed to his lawyers that he had robbed and murdered a security guard at a McDonald’s restaurant in January 1982, a crime for which another man, Alton Logan, was being charged. Bound by the attorney-client privilege, Coventry and Kunz kept silent as Logan was ultimately convicted and sentenced to life in prison for a murder he did not commit. Andrew Wilson had given his attorneys permission to disclose his secret only upon the event of Wilson’s death. In anticipation of that moment, in 1982, Coventry and Kunz executed an affidavit attesting to Wilson’s admission. They kept the affidavit in a lock box under the bed in one of the men’s bedrooms for a quarter of a century while Logan served prison time for a crime he did not commit. It was only in 2007, upon Wilson’s death, that they produced the affidavit to the authorities. In 2008, Logan was released from prison.20 Both Coventry and Kunz now speak openly about the angst and torment they suffered as a result of being ethically bound to keep Wilson’s secret.21 They also give thanks to their client, Wilson, for agreeing to allow them to disclose the secret, because without Wilson’s permission, they would both have had to take that secret to their graves. Both Coventry and Kunz have been celebrated by the legal community for the ability to keep their client’s secret.22 In addition to being lauded by the legal community for keeping quiet for all these years, they should also be commended for having the foresight to acquire their client’s permission to reveal his secret after his death. Coventry and Kunz have been much less well received by the community at large.23
Everyone loves a good story, and lawyer stories can be among the best. However, lawyers are prohibited from telling the very best ones—the ones about their real, everyday life experiences with their clients (a fact I must remind lawyers who visit my classroom of all the time). Lawyer “war stories” can be fascinating and entertaining, but without client consent, telling war stories is a violation of a lawyer’s ethical obligations. A lawyer may discuss his cases only if there is no reasonable likelihood that the listener will be able to identify the actual client or case. Even a lawyer’s “hypothetical” story is prohibited by the ethics rules if it could reasonably lead to the discovery of a client’s identity, information, or the situation involved.24 Similarly, labeling a story a work of fiction does not abrogate a lawyer’s ethical obligation not to reveal client confidences.
At the outset of The Autobiography of an Execution, the author tells us that he has gone to great lengths to disguise particular identities in order to fulfill his ethical obligations. He is required to do so. His ability to provide the very best legal representation for his clients is dependent, in large part, on his clients’ having confidence that their lawyer will keep their secrets forever. Even a lawyer who believes that it would benefit society to learn about the details of one of his cases, or who believes that it would be personally therapeutic to discuss one of his cases, confronts head-on the lawyer’s obligation to keep secrets. Of course, the safest ethical choice is to remain silent. However, if the decision is to tell his story, the lawyer must be very careful not to reveal his client’s identity, information, or confidences.
Meredith J. Duncan is the George Butler Research Professor of Law at the University of Houston Law Center, where she teaches in the areas of professional responsibility, legal ethics, criminal law, sexual assault law, and torts.