'My client, right or wrong' -- lawyers may revise tradition
When you hire a lawyer, what do you have a right to expect? Does the responsibility to defend you vigorously mean shielding possible illegal, or even criminal, activity from the opposition and the court?
If a lawyer believes his client may do physical harm to someone or be engaged in fraudulent activity, does he have a responsibility to report this to the authorities?
Total advocacy for one's client has been a basic underpinning of the United States justice system since the founding of the republic. The ''adversary'' proceeding is threaded through the American democratic process. Every defendant is entitled to a competent lawyer who will fervently plead his case.
The ''my client right or wrong'' dictum has gone almost unchallenged within the legal fraternity - at least until recent years.
But now it is being suggested - by a panel of prestigious lawyers no less - that there should be limits to advocacy; that there are situations when a lawyer must in good faith blow the whistle on his client; that public protection and the rule of law may sometimes supercede the right of a defendant to loyal counsel.
The debate over lawyers' obligations to clients and defendants' right to counsel had mostly been of the court-corridors-and-legal-luncheons variety until the so-called Kutak Commission began to hammer out a new code of ethics for the nation's half-million lawyers five years ago.
Robert Kutak, an Omaha securities lawyer, was asked by the American Bar Association to scrutinize 1969 professional guidelines (still in effect) and suggest revisions. Last summer in San Francisco, the Kutak report came before the ABA's annual convention. Controversy flared. Debate centered around what some lawyers and judges saw as a pressing need for the legal profession to clean up its own house and bolster its public credibility and what others in the fraternity read as an attempt to destroy the advocacy proceeding, endanger lawyer-client trust, and clamp almost totalitarian restrictions on the judicial system.
Now later this week and next, the debate moves to New Orleans, where ABA midwinter conferees may vote the new code up or down - including the controversial ''Rule 1.6. Confidentiality of Information.''
Simply, in proposing ''1.6'' the commission says there are some circumstances in which lawyers ought to report their clients to law-enforcement authorities. Among other things, it urges voluntary disclosure of privileged information in order to: prevent crimes and frauds likely to cause death, substantial bodily harm, and financial injury; prevent crimes that may be furthered by a lawyer's services; and protect lawyers against disciplinary action or even criminal charges.
Opponents of this flexibility in ''confidentiality'' standards insist that it would importantly (and destructively) alter the lawyer's role - from that of a ''total advocate'' to that of a ''watchman.''
''Under these rules, trial lawyers would have great difficulty conducting a criminal defense,'' holds John C. Elam, a past president of the American College of Trial Lawyers. ''Lawyers would be required to do the work of the opposing counsel,'' says Mr. Elam, whose group is the chief opponent to altering ''1.6.''
Others insist that adoption of this code change could lead to a serious breakdown in communications between client and lawyer - even to the point of inhibiting a defendant from confidentially revealing planned criminal activity from which an attorney could possibly dissuade him.
But Mr. Kutak rejects the charge that the proposed rules would undermine the adversary system. He insists that new recommendations simply upgrade and clarify the 1969 code.
If the ABA - the nation's largest and most influential group of lawyers - adopts the Kutak confidentiality proposals, these rules still won't be binding on America's lawyers. However, legal observers say such guidelines will prod state legislatures to pass tougher laws on legal ethics and almost certainly promote greater self-discipline within the legal profession. Existing statutes in 38 states now require a lawyer to disclose fraud committed by a client in the course of representation.
Regardless of the resolution of ''1.6,'' why the spotlight on legal ethics in America today? Some say it has been building for a decade, since Watergate, when the credibility of lawyers plummeted with disclosures of crime and cover-up by government officials - a great many of them lawyers.
Since that time, many law schools have instituted new courses on ''ethics'' or dusted off old ones that were listed in catalogs but seldom offered. Publications within and without the legal profession are more and more spotlighting abuses of the law by those who practice it. Hollywood is spinning off Academy Award contenders like ''The Verdict,'' which deal with a lawyer's responsibilities toward a client and the public at large. And popular television programs, including ''Miller's Court,'' grapple with some of the same issues.
Lawyers are hearing a version of the biblical inscription: ''Physician, heal thyself'' applied to them. And it appears that a lot of them are listening.