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’.

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Thoughts on the Iowa Supreme Court’s Marriage Decision

First, let me thank Prof. Slavin for inviting me to contribute to the blog.  I shall try not to be dull, and in that effort, I begin my blogging stint with a controversial topic, the Iowa Supreme Court’s recent decision striking down the state’s ban on same-sex marriage.

My take on same-sex marriage begins with my personal experiences with same-sex couples, and homosexuals in general.  If the law treats them like second-class citizens, and my experience shows me that this is just not right, then I look to the law to make sense of why this treatment must be so.  And I cannot find the justification.

The first time I met someone I knew to be gay was in the Navy.  I met many during my service.  On our boat, the presence of gay sailors was open and notorious, and no one cared.  They did their jobs and stood their watches; nothing else mattered.  It was the same on shore.  

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April Is the Cruelest Month

Spring is rumored to be in the air, but in the legal academy and in general it isn’t always the happiest and most optimistic of times.  T. S. Eliot offered the following lines in the The Waste Land:

April is the cruelest month, breeding

Lilacs out of the dead land, mixing

Memory and desire, stirring

Dull roots with spring rain.

Winter kept us warm, covering

Earth in forgetful snow, feeding

A little life with dried tubers.

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