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William H. Simon, Attorney-Client ConfidentialityGeo. J. Legal Ethics (forthcoming, 2017), available at SSRN.

In a concise and elegant essay, titled Attorney-Client Confidentiality: A Critical Analysis, William H. Simon offers a compelling justice-based critique of the doctrine of confidentiality. Defined broadly to encompass all “information related to the representation” of a client, the traditional doctrine, dubbed by Simon “strong” confidentiality (p. 1), forbids disclosure unless narrow exceptions apply (see Rule 1.6). Challenging both the expanse of the doctrine and its categorical posture, Simon instead advances what he calls “moderate confidentiality”—a duty that would “mandate preservation of confidentiality except where disclosure is clearly necessary to avert substantial injustice.” As Simon explains:

The moderate duty is sensitive to context and demands complex judgment on the part of the lawyer. In every case where confidentiality threatens to work injustice, the lawyer must weigh the value of client loyalty against the competing harm disclosure would avert. By contrast, the strong confidentiality of current doctrine is more categorical in form and seems designed to minimize judgment. Once there is a presumptively confidential communication, the lawyer is directed to consult a list of exceptions. If there is no relevant exception, confidentiality prevails over competing considerations, no matter how weighty they are. (P. 2.)

In so doing, Simon first rejects the two common justifications for strong confidentiality: the notion that strong confidentiality is needed to foster trust in the attorney-client relationship, which in turn makes the representation more effective, and the vindication of law and legal rights. Both justifications are codified in comment 2 to Rule 1.6. The comment reads in relevant part, “[confidentiality] contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively,” and adds that “[a]lmost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct.” (Rule 1.6, cmt 2.)

As to the first justification, Simon argues convincingly that trust in the attorney-client relationship if and when it results in substantive injustice to others, does not constitute a compelling justification to broad confidentiality. In Simon’s words, “the key underlying value of the legal system is justice. The legal system does not exist to create trust. It exists to create order within the limits of justice. When confidentiality threatens justice, as it often does in its strong version, it is implausible to assert that trust is more important.” (P. 3.) And, as to the second, Simon asserts that vindication of clients’ rights, either advising clients about past conduct or in connection with their future acts, does not require strong confidentiality, evident by the many exceptions to the existing doctrine. (Pp. 2-8.)

Having found the rationales for strong confidentiality “uncompelling,” the essay advocates a softer and more context-specific substitute. Simon points out that while the current doctrine appears to result in certainty for clients and lawyers regarding the application of confidentiality, strong confidentiality does not in fact provide clients with strict assurances that information related to the representation will never be disclosed. More importantly, Simon argues that the moderate approach he advocates still takes the form of a presumption in favor of confidentiality, while inserting justice – “the key underlying value of the legal system” (p. 3) – into the analysis, allowing lawyers to consider justice, if not as a client goal, then appropriately as a constraint on confidentiality and the representation itself. (P. 10.)

Justice, the cornerstone of any legal system, has long been a neglected aspect of the American legal system. While the Preamble to the American Bar Association Model Rules of Professional Conduct defines a lawyer to be “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice,” U.S. lawyers increasingly understand their role predominantly in terms of the representation of clients, to the relative exclusion of meaningful duties as officers of the legal system and as public citizens, see here and here for a summary of the relevant data. Indeed, the Rules themselves specify few duties for lawyers as officers of the legal system and public citizens, and law schools and bar associations increasingly shy away from teaching, or even engaging their students and members in meaningful debates about conceptions of justice, see here. An increasingly competitive market for legal services informed by a business and legal cultures that treat the public interest as nothing more than the aggregate of clients’ private interests help further reduce the space for justice in lawyers’ practice of law.

Simon, however, asserts the inherent importance of justice, both as the underlying value of the legal system and as the cornerstone of the attorney-client relationship. This is where the essay is at its best: while “[t]he private lawyer has a duty to advance the private interests of the client . . . the private lawyer is to seek the client’s goals within the limits of justice.” (P. 10, emphasis in the original.) In a day and age in which some worry that justice, and, in particular, lawyers’ “special responsibility for the quality of justice,” have become little more than rhetorical gestures as opposed to real commitments of the legal profession, Simon’s insistence on taking justice seriously by incorporating it explicitly into arguably the most important doctrine to lawyers and their clients, is not only refreshing, but a fundamentally important stance.

Critics may argue about the details of Simon’s proposal. Some may accept that strong confidentiality is too broad and agree that a “softer” approach may be warranted, but nevertheless wonder whether alternative formulations of moderate confidentiality not involving justice may exist. For example, the 1969 Model Code superseded by the current Model Rules featured a narrower approach to confidentiality, protecting only confidences and secretes as opposed to “information related to the representation.” Others may worry about entrusting to lawyers some kind of a gatekeeping role, making them unelected justice-kings who can override confidentiality when they, but not their clients, believe that “disclosure is clearly necessary to avert substantial injustice.” And yet others will no doubt question the administrative costs of moving from a bright line strong confidentiality to an open ended “substantial injustice” standard.

Such likely disagreements over the particulars notwithstanding, the essay makes a unique contribution making it a must read for clients, lawyers and scholars of the legal profession. It makes a powerful case for the inherent role justice must play in the practice of law and in doctrines that regulate it. Bill Simon, of course, is not a newcomer to either arguing about the importance of justice to the practice of law.1 This essay builds on and extends Simon’s extensive contributions in at least two ways: it gives “coherence to confidentiality exceptions by unifying them around a single, compelling concept – justice,” and it offers an understanding of confidentiality that is “responsive to cases that fall in the cracks between the current discrete exceptions.” (P.12.)

  1. See William H. Simon, The Practice of Justice – A Theory of Lawyers’ Ethics (1998), or criticizing confidentiality, see, e.g., William H. Simon, The Kaye Scholer Affair: The Lawyer’s Duty of Candor and the Bar’s Temptations of Evasion and Apology, 23 Law & Soc. Inquiry 243 (1998); William H. Simon, The Confidentiality Fetish, Atlantic Monthly, Dec. 2004, at 113; William H. Simon, After Confidentiality: Rethinking the Professional Responsibilities of the Business Lawyer, 75 Fordham L. Rev. 1453 (2006). []
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Cite as: Eli Wald, Just Confidentiality, JOTWELL (July 28, 2017) (reviewing William H. Simon, Attorney-Client ConfidentialityGeo. J. Legal Ethics (forthcoming, 2017), available at SSRN), https://legalpro.jotwell.com/just-confidentiality/.