Proposed legislation will help balance lawyer confidentiality and public needs

Proposed legislation will help balance lawyer confidentiality and public needs

VIEWPOINT: Conduct of Lawyers Act, telling clients rules of privilege will help balance private, public needs

Doug Schafer

U.S. Attorney General John Ashcroft's new policy of monitoring conversations between terrorism prisoners and their lawyers has drawn attention to the concepts of lawyer-client confidentiality and privilege.

But most people know very little about those concepts, often only from TV shows that mislead viewers because the rules vary so greatly among the 50 states.

Some lawyer groups foster the public's misconception that every word spoken to a lawyer is absolutely confidential and privileged. But in fact, most states recognize many exceptions to lawyer-client confidentiality and privilege, including exceptions aimed at preventing crime and fraud.

This year, Washington's lawmakers will consider a consumer-protection bill, the Truth in Lawyering Act, which I wrote. It would require lawyers to give clients a preprinted disclosure statement or brochure explaining our state's rules of privilege and confidentiality and their conditions, limitations and exceptions. State Reps. Mark Boldt (R-Vancouver) and Sarah Casada (R-Puyallup), among others, will co-sponsor the legislation.

Armed with accurate information, clients (and lawyers) will be less likely to unintentionally waive their privilege rights or to mistakenly expect privilege and confidentiality when one of the exceptions actually applies, such as when acting as a guardian, trustee or executor. The bill would also require that lawyers give clients written contracts explaining their financial terms and scope of work and that lawyers fully disclose any referral fees they stand to receive for sending a client to another lawyer.

Another bill, the Conduct of Lawyers Act, invites the Legislature to balance lawyer-client confidentiality against the public's high interest in safety, law and order, good government and protecting children, the elderly or infirm. The bill would leave the state bar association and the state Supreme Court in charge of lawyer ethics, rules and discipline, but would set minimum standards of ethics to protect and serve the public.

Under this legislation, no ethics rule could prohibit a lawyer from voluntarily revealing client information he or she reasonably believes is necessary to: warn any person of a real threat of violence; prevent probable death or serious bodily harm to anyone from any cause; prevent a client from committing a crime or from committing fraud using the lawyer's services; reduce the harm to a victim of a client's crime or fraud that the lawyer unwittingly aided; report child abuse or neglect, or abuse or exploitation of an elderly or vulnerable adult; and report corruption by lawyers, judges or other government officials.

These minimum standards reflect the moral values that lawyers and the public shared before the early 1980s. Until then, lawyer ethics standards permitted - sometimes required - lawyers to reveal clients' secret information to satisfy higher public interest priorities, like public safety.

But in the 1970s and '80s, lawyers' priorities changed dramatically. In response to government and private-party lawsuits against lawyers for failing to report their clients' frauds and dangerousness, the American Bar Association changed its model ethics rules to require absolute confidentiality of client information, giving lawyers a perfect defense to such lawsuits.

Bar leaders began proclaiming that lawyers have no duties to society - that their only duties were to their clients. Some state bars and supreme courts, like ours, then changed their rules similar to the ABA's model, but with many variations. Other states rejected the ABA's changes.

Since the 1980s, academics and public-spirited lawyers have tried to restore the traditional ethics standards that balanced both public and private interests. Their latest effort failed last August when ABA national delegates rejected changes proposed by the ABA's Ethics 2000 Commission.

Opponents reminded delegates that absolute confidentiality rules effectively shield lawyers from liability for failing to warn their clients' victims. That was all it took.

The proposed legislation now in Olympia will serve the public by dispelling myths about lawyer-client privilege and confidentiality and by restoring to our state's lawyer ethic rules the traditional balancing of public interests with private ones, including those of lawyers.

Strong opposition is expected from lawyer lobbyists and possibly from the lawyers who control the House and Senate judiciary committees. Only strong support from citizens who support these changes will make a difference.

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Doug Schafer is a Tacoma attorney. Last year, the state bar association recommended Schafer's law license be suspended for one year for disclosing client information that led to the removal of Pierce County Superior Court Judge Grant Anderson. The state Supreme Court will hear arguments Feb. 26 on the recommendation.

01/08/2002