The Dilemmas of Confidentiality

    “This memorandum, even if it’s authentic, which I doubt, I highly doubt, is protected,” Karen Crowder tells Michael Clayton, one of the lawyers at the firm that represents the company for which she is general counsel.  “It’s a cut-and-dry case of attorney-client privilege.”
    Tilda Swinton won an Academy Award for her performance as Crowder in the movie, “Michael Clayton,” a legal thriller that centered on a critical internal memo containing damaging information.
    As a movie buff, I won’t ruin the ending for those of you who haven’t seen it.  The short of it is, Clayton works for a powerful law firm that is representing a large corporation in a multi-billion-dollar class-action lawsuit.  One of the partners at the firm is feeling guilty about the harm the corporation has caused and is about to release this very incriminating internal memo of his client’s. 
    When that partner is killed, Clayton, played by George Clooney, discovers it as well, and finds himself in an ethical dilemma: whether to reveal client confidences that will surely cause the firm’s client to lose the case.
    Aside from this movie, the issues surrounding the attorney-client privilege have been making real news in the past few months following the controversial recent policies of the federal government that have eroded the privilege and work-product doctrine, particularly in a corporate context. 
    Various federal agencies have been pressuring companies and organizations to waive their privileges as a condition for receiving credit for cooperation during criminal investigations.  For an innocent man on death row, it was the subject of a Chicago Sun-Times editorial (“Attorney-client secrets need some exceptions,” March 11, 2008). 
    And the U.S. Senate is considering, S.186, the Attorney-Client Privilege Protection Act of 2007.  The identical bill, H.R. 3013, passed the House last November.
    The American Bar Association calls the bill the “proper balance between effective law enforcement and the preservation of essential attorney-client privilege, work product and employee legal protections,” with practical and clearly defined limits on a federal agency.         Proponents say it preserves the ability of prosecutors to obtain non-privileged factual material needed to punish wrongdoers and enforce the law.  At issue are the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination.
       In Illinois, the Supreme Court adopted in 1990 the current Illinois Rules of Professional Conduct, which were largely based on the 1983 ABA Model Rules of Professional Conduct.  The ABA then updated its Model Rules of Professional Conduct in 2002.
    The Illinois Supreme Court, and the Illinois State Bar and Chicago Bar associations established committees to review the ABA's update. The result is a comprehensive proposed change to the Illinois Rules of Professional Conduct, which has been submitted to the Illinois Supreme Court.
    The Committees have proposed rules that include new language and even some new rules. For example, proposed Rule 1.13, “Organization as Client,” clarifies the duties owed by a lawyer to an organization when the lawyer discovers wrongdoing on the part of an officer or employee of the organization.  Rule 1.18 provides guidance and codification of precedent on “Duties to Prospective Client.” 
    One of the most significant changes will be whether the Illinois Supreme Court will adopt official comments to the Rules –  something new for Illinois – that are meant to better explain the intent and purpose of each rule.
    For example, the comments dealing with Rule 1.6 on “Confidentiality of Information” are nearly five pages long and was one of the most discussed issues.  In the fictional case of Michael Clayton, the comments suggest that if a lawyer learns information about a client discharging toxic waste into a town’s water which creates a “present and substantial risk,” the information must be revealed to authorities. 
    In the real case of the man on death row, proposed Rule 1.6(b)(3) acknowledges that there may be situations where crime or fraud can be prevented, rectified or mitigated, but the privilege may not be broken when the person who has committed the crime employs the lawyer for representation concerning that offense. 
    The Chicago Lawyer discussed this issue recently in a lengthy article, “When Ethics Clash with Morality,” March, 2008. 
    Significantly, proposed Rule 1.6 on confidentiality has been revised so that information received by a trained intervener, such as a mediator or arbitrator, also should be protected by the attorney-client privilege.
    It must be remembered that the privilege belongs to the client, not the lawyer, and it enables open communication so that clients need not be concerned about confidentiality.  After such scrutiny of the Illinois Rules of Professional Conduct by so many qualified attorneys throughout the state who really care, the rules still have the same underlying message in encouraging professional conduct and protecting the public:
*play fair
*work hard for your clients and communicate with them; and
*don’t misrepresent anything to anyone.
And as the Bible teaches, don’t do anything to others that you don’t want done to you.