Legal ethics code: Will the states follow US Bar Association's lead?
The American Bar Association's (ABA) six-year squabble over legal ethics is about to draw to a close. Or is it? Almost certainly, the House of Delegates of the nation's most prestigious and power-wielding group of lawyers will vote ''aye'' on a revised Model Code of Legal Ethics at the ABA's week-long meeting in Atlanta that starts Thursday.
And if they do, they will be setting conduct guidelines for thousands of lawyers across the United States. However, in order to be effective, these rules will have to be incorporated into law in the 50 states.
The main contention over the code - which was hotly debated last summer in San Francisco and again in New Orleans in February - has been the issue of lawyer-client confidentiality. Simply, the majority of the members of the so-called Kutak Commission (which has pored over the code since 1978) wanted to trade off confidentiality for disclosure when a lawyer learned of fraudulent or criminal activities or intent on the part of his client. The commission said its aim was to raise the ethical standards of the legal profession - and in so doing , polish up the image of lawyers, which has, according to some polls, suffered low public esteem since Watergate.
However, many lawyers feared throwing out the baby with the bath water. Lawyer-client confidentiality is the cornerstone of the US legal system, dissenters to the commission's position insisted. John Elam, president of the American College of Trial Lawyers, asserted: ''The true role of a lawyer is to render advice to a client. As soon as clients learn that their confidences may not be safe, lawyers will have few truths to deal with.''
In effect, the dissenters were saying: Blowing the whistle on clients would break down the whole advocacy system. And for all practical purposes, such a revision of the code would encourage the client to withhold information or to lie.
A compromise was struck - one which will be embodied in the (no longer amendable) formal rules that the ABA delegates now must vote on.
In essence, the revised rules continue to il20l,0,9l,7p6opt for confidentiality, with these exceptions:
A lawyer would be required to disclose clients' secrets in order to correct false or perjured information which has been introduced in court; to prevent an ''imminent'' crime of violence; or to establish a defense in litigation, for instance, in suing a client for nonpayment of fees.
Those who balked at this compromise point out that although it may head off some crimes of violence, it tends to ignore ethical responsibility in matters of corporate crime. For example, they point out that under the amended guidelines a lawyer is still banned from blowing the whistle on a client who uses his services to defraud investors or cheat a corporation or an individual.
Robert W. Meserve, who took the reins of the ABA ethics commission after the passing of longtime chairman Robert J. Kutak earlier this year, prefers maximum disclosure on the part of lawyers where ethical questions are involved. But he says he can live with the revised rules for now. He expects blanket approval of the code in Atlanta.
Mr. Meserve and others, however, are almost certain to renew their battle through receptive bar associations in states debating their own legal ethics laws and disciplinary measures for errant lawyers. Among others, Michigan, Missouri, and Minnesota already have adopted strict guidelines of this kind.
Also, legislation has now been introduced in Congress that would make it a federal crime for a lawyer to fail to tell authorities when he discovers his services were used to commit crimes or frauds. Its author, Sen. Arlen Specter (R) of Pennsylvania, a former Philadelphia district attorney, says: ''The (ABA) delegates' action would allow, though not require, disclosure to prevent a threat to one's life, but not to one's life savings. It thus creates a safe haven for white-collar crime by requiring that an attorney keep silent.
''In my judgment,'' Senator Specter says, ''such silence implicates the lawyer in his client's criminal scheme and should not be permitted.''
Meserve suggests that, although the ABA's revised code is about to be signed, sealed, and delivered, the debate over legal ethics is far from ended.