One of the sly tricks of the column biz is to reach for the old Bartlett's and find an apt quotation. Since this column is about lawyers, getting a quotation is a cinch. There are plenty of them in Bartlett's, mostly perjorative, and all of them predating the recent attempt to revise the legal code of ethics. When it comes to lawyers, Bartlett's is always up to date.
At the recent American Bar Association meeting, the legal profession tackled the question of when it would be ethical to snitch on a client. This is a sticky question and there are not, it should be said at the outset, any easy answers. Our judicial system is an adversary one and a lawyer is supposed to represent only his client. The confidence of the client is sacred. Otherwise, the system would collapse.
But there are times when a lawyer has an obligation both to his client and to society. What should he do, for instance, if he knows his client is guilty of a crime? The standard answer is keep his mouth shut--and this lawyers have done throughout history. A famous example of that occurred in 1913 when Leo Frank, an Atlanta factory manager, was convicted of the rape of 14-year-old Mary Phagan. For a time, the real rapist's lawyer kept his mouth shut, speaking up not at the trial, but only when the case reached appeal. It hardly mattered. Frank was taken from jail and lynched. Under the new code of ethics, that lawyer would have been permitted to tell the truth. But what, the ABA was asked, should a lawyer do if he discovers that a business client is cheating the public? What if the lawyer has certified the legality of a transaction and then discovers that it is not only illegal, but will result in the bilking of others? Should the lawyer rat on the scoundrel? Only to defend himself or to protect his fee, the ABA said. Then the sacred principle of confidentiality can be breached. Otherwise, the lawyer may simply resign the account.
Lawyers are not fools (okay, I generalize). They know that this sort of thing looks bad to the public, but principle, after all, is principle. As a journalist, I can sympathize since my profession (like psychiatry or the priesthood) makes just as big a deal about confidentiality. Reporters have gone to jail to protect sources and good journalists, though solid citizens, routinely refuse to help the police, saying in effect that the police have their job to do, journalists theirs. The thinking is that while in specific cases confidentiality might look awful, in the long run it serves society in general. Well, maybe. But in journalism the confidentiality rule applies across the board--almost without exception. (Like lawyers, no journalists would remain mum at the risk of someone's life.) Journalists do not suspend the rule for the sake of their own self-interest, as lawyers have voted to do. But there is a major distinction between journalists and lawyers and it comes down to this: Only lawyers are lawyers.
Lawyers are officers of the court. They are part of our legal system. They certify. They say what is legal and what is not, and since America is a land that neither recognizes morality nor ethics until they have been adjudicated, lawyers are our ethical and moral watchdogs.
When a journalist refuses to divulge a source, he at least divulges the source's story. When a lawyer keeps the confidentiality of a client who is cheating someone else, that lawyer not only has been bought lock, stock and ethics, but he is, in effect, lying. To say nothing under those conditions is the same as saying something. The lack of a warning is tantamount to saying that everything is okay. When nonlawyers know of a crime and do not report it, lawyers call it "misprision." When lawyers do it, they call it "ethical." Either way, it means concealing the existence of a crime.
This neither serves society nor, in the long run, the legal profession. Silence in the face of a crime makes lawyers accomplices and does nothing to change their image as either "mouthpieces" or people whose "profession it is to disguise matters." Sir Thomas More wrote that.
It's in Bartlett's.