At its recent meeting, the American Bar Association decided lawyers are not bound to be their clients' accomplice in crime. In the wake of the Enron and WorldCom scandals and the role law firms played in the financial trickery, the ABA's House of Delegates agreed attorneys will be allowed to breach client confidences to reveal misdeeds by corporate officers or company employees, or to stop a client from commiting financial fraud.
Critics say any breach of the traditional confidentiality between a lawyer and client puts the relationship in jeopardy. For a lawyer to properly represent his client, they say, there must be full candor and trust. But the ABA ethics rule changes are exceedingly narrow and, in the real world, are likely to have little impact on the way attorneys and their clients interact. Under the rules, attorneys are not required to report wrongdoing; they are simply given the opportunity to do so without fearing for their license. The new rules also set out an incremental process by which an attorney is to report his concerns up the corporate ladder.
As vociferous as the opponents have been, the general notion that attorneys can breach confidentiality in order to protect the interests of an innocent third party is nothing new or revolutionary. It has been part of the professional canon since the early 1900s.
Moreover, the rule changes are a welcome recognition that attorneys are not just mercenaries, hired to do the bidding of their clients. They are officers of the court and have a professional duty to uphold the integrity of the legal system. For too long some attorneys have been willing to provide legal cover for the pin-striped crooks of corporate America, executives who raid the wealth of the companies they are stewarding, leaving behind an empty shell for employees, pensioners, creditors and shareholders to pick over. There may always be lawyers and law firms willing to engage in this kind of wrongdoing, but the new rules give lawyers with a conscience a way to adhere to basic ethical standards.
