A Glimmer of Judicial Leadership
By Doug Schafer, WA State Supreme Court Candidate

On August 1, 2002, a shocking and encouraging event occurred -- the national Conference of Chief Justices, comprised of our Washington State Supreme Court's Chief Justice Gerry Alexander and the chief justice from the highest court in each of the other states, adopted a resolution (click here to see it) supporting adoption of public-interest exceptions to lawyer confidentiality of client information.  Perhaps that prestigious group's  resolution foretells a recognition by judges that they ought to lead the organized bar rather than simply follow its lead in matters of lawyer ethics.  Those  public-interest exceptions to confidentiality permit lawyers to reveal client information to prevent a client's fraud or crime, and to reveal client information to rectify or mitigate the losses to victims of a client's fraud or crime that was furthered by the lawyer's services. Twenty-four (24) states do recognize public-interest exceptions to lawyer confidentiality. (Click here to see their rules.)

The reason this development is so shocking is that for 20 years, pillars of the national legal profession -- mostly law professors --  repeatedly have attempted to get the American Bar Association's governing body, its House of Delegates, to restore those public-interest exceptions to the ABA Model Rules of Professional Conduct.  I say "restore" because those exceptions were initially incorporated within the Model Rules as proposed in 1981 by the Kutak Commission (because they reflected the judicial precedents at that time, and they still do).  Those provisions were stripped from the Model Rules in 1983 by a well-orchestrated convention rebellion led by the American Trial Lawyers Association and the American College of Trial Lawyers.  Those guilds wanted, and got, a rule that almost absolutely forbade lawyers from disclosing client information, because such a rule would effectively shield lawyers from liability for failing to warn persons who their clients' defrauded or harmed in other ways.

Legal ethicists attempted, unsuccessfully, in 1991, 1993, and 2001 to get the public-interest exceptions restored to the ABA Model Rules by the ABA House of Delegates.  And law professors wrote books and journal articles lamenting the self-serving bar's unprofessionalism and expressing dismay that most state judges lack the courage and commitment to take leadership roles in matters of lawyer ethics -- instead always giving their organized bars whatever "ethics" rules they desire, and letting the bars determine the degree of enforcement, if any, of those "ethics" rules.

The latest, most organized, and strongest effort to restore those public-interest exceptions to confidentiality was by the Ethics 2000 Commission, formed in 1997 by the ABA president to proposed updates to the ABA's 1983 Model Rules of Professional Conduct.  The Commission's Chair was Delaware State Supreme Court Chief Justice E. Norman Veasey.  To read an excerpt from that Commission's 2001 report recommending the public-interst exceptions to lawyer confidentiality, click here.  To see its full reports and all of its recommendations, click here.  To see its March 1999 draft changes to Model Rule 1.6, to restore the public-interest exceptions to confidentiality, click here.

Whether the individual members of the Conference of Chief Justices have the courage and commitment to take the next step -- bring about the adoption by their colleagues on their own state supreme courts of the public interest exceptions to their own state's lawyer confidentiality rules -- is yet to be seen.  Here's hoping for strong, moral leadership!

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