Two major factions of the nation's legal establishment are deeply split over whether a lawyer should ever blow the whistle on a client's wrongdoing.
The chasm was disclosed yesterday when the 40,000-member Association of Trial Lawyers of America unveiled a proposed code of attorney conduct that would require a lawyer to remain silent about virtually all client wrongdoing.
"The lawyer's primary duty is to each individual client who comes to the lawyer for help," said ATLA President Theodore I. Koskoff in announcing the proposed code. The attorney's undivided loyalty to a client should not be affected "by the lawyer's perception of the public interest," the proposed code states.
ATLA's proposed code is in sharp contrast with a second proposed lawyer's ethical code, this one drafted by an American Bar Association panel on behalf of that 255,000-member group.
The ABA version would, in some instances, require attorneys to disclose a client's planned wrongful acts, and in other instances strongly suggests that such disclosures be made.
In other words, a lawyer under the ABA code would be required to balance his client's interest against the interests of the public or nonclients before determining whether supposedly confidential information would be disclosed.
"We don't believe in any dilution of the lawyer-client relationship," said ATLA's Koskoff. He said the ABA proposal would force a lawyer to serve four masters -- "his client, the court, the opposition and the public" -- place "impossible judgmental burdens on the lawyer and at the same time injure the client's interests."
Koskoff and other ATLA officials said the reason for such a strong anti-disclosure code is to encourage clients to be candid with their attorneys. a
A client who became aware of the proposed ABA code requirements of attorneys "would tend to keep material facts hidden," Koskoff said. "The lawyer in the courtroom would labor under a severe handicap without complete knowledge of his client's side of the case."
The ABA code would make "the lawyer the agent of the state, not the champion of the client," Koskoff added. He said that the ATLA code, however, "is written from the point of view of the client; it tells the client what conduct he or she is entitled to expect from a lawyer."
The ATLA code was announced with the scripture-quoting rhetoric and courtroom drama -- complete with a union official speaking from the viewpoint of a defendant -- befitting the group that represents the nation's most active trial attorneys.
The proposed ATLA code covers 70 pages and ranges from rules about competence and fees to the statement that "a lawyer shall not commence having sexual relations with a client during the lawyer-client relationship."
On the issued of attorney-client confidence the ATLA proposal suggests two alternatives -- each more anti-disclosure than the proposed ABA rule on the same subject.
The code is filled with "illustrative cases," making it clear that lawyers are prohibited from disclosing that their clients have committed perjury or revealing the locations of a body if they learned the location from a client.
Both the ABA and ATLA code proposals are being widely distributed to attorneys to gather comments and suggested changes. Robert Kutak, head of the ABA group pushing the ethical change, has previously said he would be "delighted to study anybody's ideas," including those of ATLA.
ATLA, meanwhile, said its proposed code is not an attempt to force changes in the ABA proposal, but a serious drive to get its code adopted directly by state courts in place of the ABA code.
The ABA proposal would replace a 1969 ABA ethical code that has been adopted cirtually intact by almost every jurisdiction in the country.
Among other differences between the two proposals, the ATLA code does not include a provision supporting free public service work by attorneys -- a key part of the ABA code. ATLA said it did not include such a provision because it "would be unenforceable and unemforced, and therefore hypocritical."