R
"Prestige, autonomy and money - all these are at stake," said David Wilkins, a law professor at Harvard.
August 11, 2003
Lawyers Pressed to Give Up Ground on Client Secrets By JONATHAN D. GLATER http://www.nytimes.com/2003/08/11/business/11LAW.html?hp
Impelled by a wave of corporate scandals, tax evasion and concerns over terrorism, government regulators and prosecutors have taken a variety of steps that seek to limit what some lawyers say is a core principle of their profession: the ability to protect their clients' confidences. Many lawyers have reacted to the new restrictions by arguing that the lawyer-client privilege is not only a traditional tool in their arsenal but a critical one in the proper functioning of the legal system. But even the American Bar Association seems prepared to cede some ground on the issue. The association, which began its annual meeting late last week in San Francisco, will consider changes to its model code of conduct, which state judiciaries draw on in defining lawyers' responsibilities. The changes would recommend permitting lawyers greater discretion to disclose client confidences, although lawyers would not be required to do so, as the regulators are insisting.
Still, many lawyers said they could not remember such a broad encroachment by the federal government on how they practice.
"In my experience, since the early 60's, there's been nothing like this," said Stefan F. Tucker, a tax lawyer in the Washington office of Venable, who said that he was worried about the impact of new rules from both the Justice Department and the Securities and Exchange Commission. "You can do something that is perfectly kosher, it's perfectly above board, and someone can come in after the fact and say it wasn't proper."
Earlier this year, the S.E.C. adopted a rule requiring lawyers to report potential fraud to corporate boards and this fall it may well propose additional rules; the Federal Trade Commission has filed suit to force law firms to comply with a 1999 law on disclosing privacy policies to clients; the Internal Revenue Service is trying to make law firms disclose which clients bought questionable tax shelters; and the Justice Department, which has already said that conversations between lawyers and terrorism suspects are subject to eavesdropping, is also pressing corporate defendants harder to waive their confidentiality privilege in order to avoid prosecution.
The government agencies do not appear to be working in concert and very different kinds of clients are affected by each new policy. Each agency is reacting to a different crisis but the overall result is worrying to many lawyers and law professors.
"The tradition has always been that lawyers were the protectors and were most concerned with a client's rights, trying to achieve for them through the legal system the best results they could," said Timothy Terrell, a law professor at Emory University. "The twist is, lawyers also have duties." Just how worried lawyers are became apparent to Dana Welch, a lawyer in the San Francisco office of Ropes & Gray, when she led a presentation in June on the S.E.C. rules on reporting potential fraud. "All the tables were filled," Ms. Welch recalled, adding that the visibly tense attendees peppered her with questions. "People were very concerned about the rules and the effect on their life."
Supporters of some of the new government rules argue that lawyers should not stand idly by when a client does something wrong. And, while some lawyers are trying to turn the debate into one about client confidences, they say the real issue is less about the administration of justice and more about lawyers' desire to avoid regulation.
"Prestige, autonomy and money - all these are at stake," said David Wilkins, a law professor at Harvard.
continued at http://www.nytimes.com/2003/08/11/business/11LAW.html?hp
________________________
Quis custodiet istos custodes? (Who will watch the watchers?)
-- Juvenal's Satires, circa 110 AD