Topic: Professions & Institutions

The Columnist, the Lawyer, and the Privilege

Michael Greco, the president of the American Bar Association, decided that he needed to deliver a pious knuckle-rapping letter to the Washington Post’s letters page in response to columnist Steve Pearlstein’s comments on about the attorney-client privilege. Greco was indignant that Pearlstein had written these words in reaction to the guilty verdicts delivered against Enron executives Jeffrey Skilling and Ken Lay:

By hiding behind attorney-client privilege and insisting that they are subject only to discipline by captive and incompetent state regulators, few lawyers, if any, have been held to account for their prominent role in blessing and hiding corporate fraud. Four years ago, the American Bar Association asked that lawyers be allowed to police themselves. Now that self-regulation has failed so miserably, the lawyers who run the Securities and Exchange Commission need to set aside their professional loyalties and bar a few $750-an-hour attorneys from providing any more advice and services to publicly held companies.

Greco, in his best “all you unlettered non-lawyers just don’t understand” tone, explained that the attorney-client privilege protects clients, not lawyers, so lawyers obviously don’t “hide behind” it. He was technically correct, just as Bill Clinton was technically correct when he said that he was never “alone” with Monica Lewinski…after all, how can you be “alone” when you’re with someone else? But he was also, like fellow lawyer Clinton, engaging in rhetorical slight-of-hand. For the attorney-client privilege allows many attorneys to excuse themselves from having to disclose the shady activities of clients who are engaged in wrongdoing as long as the attorneys can convince themselves that they don’t “know” that actual crimes are being committed. This means that they can keep receiving lucrative fees, while strongly suspecting…but not knowing, you understand…that they are representing aspiring crooks.

Information from a corporate client about unequivocal ongoing criminal activity, you see, is not privileged; this is known as the crime-fraud exception. For this reason, lawyers may go to great lengths to avoid receiving that kind of information; it could require them to abandon the representation of deep-pocket clients who pay the bills. But information that only suggests, no matter how strongly, that something fishy is going on? That’s information that attorneys can say that their ethics codes forbid them from divulging, because it is insufficient to cause them to “know” that their clients are up to no good.

In other words, Perlstein was right, and Greco, who is nothing if not a savvy lawyer, knows it. Oh, saying that lawyers “hide behind” the attorney-client privilege is not precisely accurate; a better description might be to say that lawyers are trained to manipulate the privilege for their own welfare. The professional device of making sure that you keep your corporate clients by avoiding information that might trump attorney-client privilege even has a name: “contrived ignorance.” Legal ethicist and law professor Susan Kroniak explained how this works in her article, “Law Between the Bar and the State”:

In law schools, it is common to hear professors speak about training people to “think like a lawyer,” by which they mean to refer to analytic thinking, the ability to parse and critique an argument. But there is something much more central to lawyer thinking than that: the ability to envision the client’s behavior as legal. The constitutional norm of client loyalty, as understood by lawyers, demands that we [seek the gap between conduct that requires legal representation and conduct that is designated as illegal by the state], demands that we use all our skill to imagine as legal what our clients do and want to do. Those who drafted rules demanding that a lawyer stop helping a client when the lawyer “knows” that she is assisting a crime or fraud understand that. In the law’s normative universe, lawyers never know….To the state, its is our job to know; to the bar, it is our job not to.

The bar associations that write and enforce professional ethics rules governing lawyers do so in the grip of a powerful conflict of interest. Bars are dedicated both to upholding the integrity and ethical standards of the legal profession and, like any professional association, helping its members find employment. The result is the anomaly described by Kroniak: an ethical benchmark for rejecting ill-intentioned clients that lawyers are trained to see coming and possess the skills to avoid. The lawyer ethics rules’ strict definitions of attorney-client privilege and the attorney’s duty of confidentiality are among the tools lawyers use to avoid reaching that benchmark, and thus avoid losing the Enrons and WorldCom’s as paying customers.

Perlstein accurately stated what Kroniak and other commentators have pointed out: while many law firms have paid millions of dollars in voluntary settlements to individual victims of crimes committed by their corporate clients, virtually no bar association has ever disciplined a firm and its members for facilitating their clients’ plots. The columnist’s focus on this conspicuous failure of self-regulation (and not a desire to deliver a lecture on the attorney-client privilege) is undoubtedly what prompted Greco to rush to the battlements. For once attorney discipline is meted out by those who do not “understand” that lawyers never “know” that their clients are breaking the law sufficiently to overcome the protection of attorney-client privilege, a lot of members of the American Bar Association, and their savings accounts, will be in jeopardy.

There is no simple solution to the ethical conflict faced by attorneys whose clients may be using their services to carry on crimes and frauds. It is a problem that has been the subject of debate, analysis and repeatedly revised ethics rules for a century or more. A democracy must allow its citizens to understand and use the law; binding lawyer loyalty to clients rather than the state is essential to maintaining the American ideal that the government serves citizens rather than the other way around. But the pro-client mindset enshrined in and facilitated by the legal profession’s ethics rules also enables corporate criminals and their willfully ignorant attorneys. Attorney-client privilege is part of the problem, as Perlstein correctly asserted in his column. It is also, as Greco wrote, an important democratic principle. But by denying its role in encouraging lawyers to keep unscrupulous corporate clients paying their fees while schemes, scams and frauds continue unchecked, it was the lawyer, not the columnist, who misled the public.

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