Should a Lawyer Blow the Whistle?
IN ``The Firm,'' last summer's blockbuster movie, Mitch - the young lawyer played by Tom Cruise - faced a quandary. He discovered that his law firm, as a front for the mob, was aiding and abetting fraud, money laundering, and even murder. But Mitch couldn't blow the whistle on his colleagues without being disbarred for violating the attorney-client privilege.
Mitch found a way out of his dilemma, sending the crooked lawyers to jail without losing his license. But for lots of real-life lawyers, ethical quicksands aren't escaped so neatly. The attorney-client privilege and the related duty of confidentiality that lawyers owe their clients (the former means that lawyers can't be compelled to disclose clients' secrets, and the latter means that lawyers mustn't volunteer such information) seal many a lawyer's lips, even when the effect is to conceal wrongdoing.
Nonlawyers often are dismayed that legal ethics obligate lawyers to keep silent about matters that, under common standards of decency and morality, should be disclosed to prevent or remedy wrong - even a client's intention to commit a nonviolent crime. Ironically, lawyers' ethical conduct in hiding the truth may contribute as much to public disdain as unethical conduct like ambulance-chasing or stealing widows' money.
Nonlawyers aren't alone in their puzzlement about attorney-client confidences, however. Many lawyers are upset, too, but for the opposite reason: They say attorneys are under unprecedented government pressure to betray client confidences and become informants.
``All around the country, good and honest lawyers are getting subpoenas,'' says Lawrence Goldman, a defense lawyer in New York.
The theory behind the attorney-client privilege is simple: If lawyers can be forced to divulge information about their clients, people won't consult lawyers - with the result that lawyers won't be able to counsel clients on lawful and unlawful conduct, dissuade them from illegal actions, or induce them to rectify errors. Effective legal representation requires trust, and trust is built on confidentiality.
But many lawyers worry that prosecutors and regulators want to drive a wedge between attorneys and their clients. ``The US government is trying to deputize the private bar into law enforcement,'' says Brendan Sullivan Jr., a Washington lawyer who represented Oliver North in the Iran-contra proceedings.
Under a growing number of laws, regulations, and government contracts, Mr. Sullivan says, lawyers for savings-and-loans, defense contractors, and some other companies ``might as well wear a lapel pin that says to employees, `Anything you tell me I'll have to report to the government.' In those industries, lawyers won't learn what they need to know to represent companies properly.''
Under the profession's ethics rules, lawyers may not assist clients in actions that lawyers know to be criminal or fraudulent, nor knowingly offer false evidence. A lawyer who discovers a client's wrongdoing must try to dissuade the client, and if that fails the lawyer may quit. In most situations, though, the lawyer is not required to - indeed, may not - blow the whistle on the client (although sometimes a well-publicized ``noisy withdrawal'' raises an unmistakable red flag).
Questions about lawyers' conflicting duties to their clients and the public have been intensified by the savings-and-loans scandal. ``Where were the lawyers?'' federal Judge Stanley Sporkin thundered in the case against S&L manipulator Charles Keating, and government investigators have been busy trying to find out. In the past two years, several prestigious law firms in the United States have paid hundreds of millions of dollars to settle charges that they helped defraud investors and mislead regulators.
Despite much anguish within the profession, such prominent legal ethicists as Stephen Gillers of New York University and Geoffrey Hazard of Yale University concur that federal actions against S&L lawyers have been proper, to the extent that some lawyers evidently lent cover to fraud. ``Lawyers aren't privileged to knowingly assist clients in fraud or crime,'' says Monroe Freedman of Hofstra University.
But these scholars largely reject government hints that lawyers should have gone to regulators with evidence of wrongdoing. ``Attempts to dragoon lawyers into working for prosecutors is a very unfortunate trend,'' Professor Freedman says. Such attempts will backfire, he adds: ``The more [information] lawyers are forced to divulge, the less information they will have with which to do their jobs.'' In the long run, justice could suffer.