ALMOST SEVEN years to the day after Richard Nixon's resignation, there occurred in New Orleans last weekend a spirited "post-Watergate" debate at the annual meeting of the American Bar Association. The subject was a proposed new code of ethics partially inspired by--and significantly addressed to--the moral problems confronted by a number of attorneys during the Watergate crisis and other recent scandals. At some point, virtually every lawyer confronts the question of whether an obligation to respect the confidentiality of discussions with a client extends to knowledge of that client's deception, perjury or other possible wrongdoing. The ABA's Commission on Evaluation of Professional Standards worked from 1977 to 1980 on a set of proposed new rules for professional conduct. To its credit, the co pmmission recommended standards sufficiently stringent to have unleashed a barrage of complaints about their impracticality.
We freely acknowledge here a special interest; one of the commission's members was our former editorial colleague, civil libertarian and legal scholar, the late Alan Barth. As for the commission's draft, its 50 rules tackle a range of ethical concerns, including tougher standards for evaluating clients' complaints about the competence of legal assistance, attempts to define more precisely a lawyer's obligation to perform pro bono work and the issue of attorney advertisements. The most contentious sections of the draft, however, deal with the responsibilities of lawyers who find themselves in situations that demand either their active complicity in abetting unlawful conduct or--at the least--their clear knowledge of such behavior.
The commission recommended a number of changes in the existing ABA code, most of which came down strongly against what laymen might consider the "Watergate defense," a presumption of absolute confidentiality governing lawyer-client relations, no matter how many illegal actions had been committed or contemplated. "Reduced to their essence," observes an ABA summary of the changes, "the proposed model rules provide no more than that a lawyer may not assist a client in criminal or fraudulent activity or engage in such activity to secure lawful client objectives." Many of the suggested rule changes merely urge attorneys to adopt a prescribed course of action rather than mandating it.
Undoubtedly there remain changes to be made in the commission's draft before its approval, among them clarification of procedures considered acceptable in conducting complex business negotiations or criminal defense strategy. But any attempt to gut the code's essential features would confirm the public's already low estimate of the legal profession's prevailing standards.