Bad Law Makes Tragic Cases: Is Rule 1.6 Unethical?
I am just finishing up Law Governing Lawyers with Prof. Schneider. I did wonder before the class first met why the course was not called something like “Legal Ethics”; after all, even our text is entitled “Ethical Problems in the Practice of Law” by Lerman and Schrag.
It didn’t take long to discover that the law governing lawyers, while usually ethical, occasionally requires behaviors that cannot possibly be squared with any ethical system.
The one that stands out most is Rule 1.6 in the Model Rules of Professional Responsibility. In Wisconsin, this Rule is codified as SCR 20:1.6 Confidentiality.
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in pars. (b) and (c).
[paragraphs (b) and (c) omitted.]
The rationale behind the Rule is that effective representation depends on the client’s candid communication with his or her attorney, which depends on trusting the attorney to keep the client’s confidences. Everyone has a right to fair treatment by the law ensured by effective representation. I get that, and at first glance, there is no apparent ethical dilemma. If clients tell their attorneys about ongoing or impending criminal acts, paragraphs (b) and (c) require or allow reporting.
But deeper reflection in class drew out a serious ethical dilemma from tragic cases in which lawyers are given information about past crimes, which does not fit the given exceptions and withholding of which is difficult to justify. The most tragic cases are child killers whose victims have not been found. When the killers tell their attorneys where the bodies are, can the attorneys be compelled tell the families or the police? From several cases, the answer is ‘No’.