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ABA Commission Tests Attorney Client Relationship
GRAND RAPIDS — At the recent summer meeting of the American Bar Association held in Chicago, the organization’s governing body beat back an effort to loosen the profession’s tight code of ethics regarding the attorney-client relationship.
The long-standing privileged nature of communications between the two was challenged when the ABA’s Ethics 2000 Commission recommended an easing of the rules. The change would have allowed lawyers to report things learned from clients that went beyond the traditional disclosure of potentially violent crimes that could result in death or injury.
Commission members felt attorneys should also report such incidents as possible suicide attempts or potential economic crimes because the interests of the public good and the integrity of the profession should override confidentiality concerns.
But the following day, the ABA House of Delegates voted down the proposal, and only agreed to allow attorneys to breach client confidentiality if they feared someone was about to be killed or seriously injured when the client wasn’t directly involved.
Much of that provision is already in the ABA Code of Ethics, but is limited to when an attorney has knowledge of an imminent death or substantial bodily harm that would come from the action of a client.
The vote not to make major changes to the code was 255 to 151. Opponents felt that confidentiality should be virtually absolute. But even the slight ethical change may not gain approval when the ABA meets again next year to formally adopt the entire code.
Whatever the ABA decides, however, will likely have little impact on the state’s legal profession. The outcome could be seen as a potential ethical model, but in Michigan the Supreme Court issues those rules. And for all practical purposes, most attorneys are apt to follow the current standard.
Bruce Neckers, a partner at Rhodes, McKee, Boer Goodrich & Titta and president-elect of the State Bar Association, agreed with the ABA’s decision to reject the reform.
“It’s important the leaders of the profession are saying that when it comes to physical harm or personal injury, lawyers have a right to report that. When it comes to economic losses, they don’t,” he said.
“We really have to maintain our right to total confidentiality of the information that is given to us in our offices. Our clients have a right to expect that our historic attorney-client privilege remains in place,” added Neckers, who assumes the bar’s top post next month. “I would be very much opposed to changing it except in situations where somebody is going to be physically harmed, injured, or death results.”
Fred Dilley, a partner at Boyden, Timmons, Dilley & Haney and recent past-president of the Grand Rapids Bar Association, told the Business Journal that the issue hasn’t been a topic of discussion for the local organization over the past year.
“I think it’s a big tempest in a teapot, truly, a tempest in a teapot. It’s the kind of thing that makes for great cocktail-party conversation. But as a practical matter, especially in a community like Grand Rapids, lawyers are going to be extremely scrupulous about observing the attorney-client privilege,” he said.
Dilley pointed out that bars have long histories of not reacting just for the sake of doing so when a sensational event or crime becomes water-cooler talk across the country.
“These are broad, sweeping policy decisions that have to pass a terrific amount of scrutiny in the hierarchy of the bar, and any significant changes are highly unlikely,” he added.
Dale Ann Iverson, a partner at Smith, Haughey, Rice & Roegge and recently installed president of the local bar, said confidentiality is a complicated and tension-filled issue for lawyers regarding their responsibility to the legal system and their clients. Attorneys, Iverson said, have always wrestled with this ethical matter, even the economic fraud aspect.
“White collar crime is just so prominent in the public’s mind nowadays that attorneys would have to be focusing their attention more and more on that balancing act between what they owe the public, the system of justice, and what they owe their clients,” she said.
“If they were talking about it at the summer meeting, they were talking about it long before that because the kind of preparation they have to do to bring something to the floor like that has probably been on people’s plates for the last year or more,” added Iverson.
Dilley said in recent years the psychiatric field has paid more attention to changes in client confidentiality than the legal profession. But he also understood why the topic surfaced at the ABA meeting. He was certain that many people felt it needed to be raised, especially after the testimony tobacco-company executives gave to Congress a few years ago.
“In the tobacco industry, for 30 years, the attorney-client privilege has been used to, basically, hide information. Every time there was a report on addiction, it was funneled through a lawyer. The lawyer would put it in a memorandum, which would ostensibly make it attorney-client privileged,” he said. “And I think there were a lot of lawyers and others in the public who wondered whether that was really right.”