Monday, March 15, 2004
Pride and Privilege
“Never let your sense of morals get in the way of doing what's right." Isaac Asimov
“If I were to make public these tapes, containing blunt and candid remarks on many different subjects, the confidentiality of the office of the president would always be suspect.” Richard M. Nixon, disbarred New York lawyer
What will they think of next? There were always some things you could rely on. Rules and stuff that make your life sane, or at least seem sane. Such as, “The sun comes up in the East.” or “If you ask a judge when that decision will be rendered, you’ll lose.” or “The Red Sox will not win the World Series this year, but they’ll act like they will until September.” Truisms. However, I read recently that the American Bar Association has just altered the Model Code of Professional Responsibility to permit lawyers to use their discretion to disclose client confidences in the area of criminal conduct and fraud. I know. I thought this “Code” had to do with Naomi Campbell and Heidi Klum too. Chin up, smile, don’t trip, etc. Actually, it is the prototype for the New York Lawyers Code of Professional Responsibility, and these changes will undoubtedly be considered in New York in the near future. So, is nothing sacred anymore? The impetus for all this comes from the Feds, as you can well imagine. You see, the Securities Exchange Commission adopted a rule that requires lawyers to report fraud to corporate boards, and it is considering making the lawyers report to “the regulators” i.e. Big Brother. Then the Internal Revenue Service tries to make lawyers fess up about clients who purchased questionable tax shelters. The Federal Trade Commission has sued to make lawyers disclose privacy policies with clients. Not to be outdone, those stalwarts of personal freedom, the Justice Department now claims that conversations between terrorism suspects and their lawyers are subject to eavesdropping. Then the chief justices of all 50 states adopted a rule favoring the proposal to modify the client confidence rules and voila, the ABA responds. Hmmm.
Here’s an example. Under the model code, a lawyer is allowed, but not required, to disclose a client's confidences to prevent or rectify a crime by the client that would cause substantial financial harm to others, if the lawyer's services were used to further the crime. I’m not sure I even know what that means, but it is certainly a radical change from the absolute rule, i.e. what you say to an attorney cannot be revealed by the attorney under any circumstances without your consent. That rule I can understand. Now I am supposed to figure out when and if I should blow the whistle on some poor sap who sought my advice? I don’t think so.
With all due respect to the 50 chief justices, I have always been in favor of expanding the confidentiality rules. After all, if what you say to your podiatrist is confidential (See Section 4504 of the CPLR if you don’t believe me.), then why not someone who really hears your moral failings, like your bartender or your barber? I am a black and white kinda guy. If you tell me a rule, and if I can remember it, I can usually apply it or convey it to a client. Why for gosh sakes, the New York Code of Professional Responsibilities MAKES me give matrimonial clients a Statement of Rights and Responsibilities in the initial conference. And what’s in there, pay tell, in addition to some cockamamie language requiring me to be courteous to my client? (Sure, I should be courteous anyway. But doesn’t it bug you that the client has no obligation to be courteous to the attorney? Or as one of my more jaundiced matrimonial practitioners quipped, “If I can’t have sex with them, why do I have to be courteous to them?”) “You are entitled to an attorney who will preserve your confidences and secrets that are revealed in the course of the relationship.” Not that’s a rule I can understand! So now do I have to make some ethical determination if it is fraud, causing substantial harm to others, or furthering a crime? I’m not real good at these gray areas, and I’ll tell you why.
Remember Francis Belge? Of course not. You’re too young. He was assigned in 1973 to represent a really bad guy, Robert Garrow. During the attorney client discussions with Mr. Garrow, Mr. Belge learned that Mr. Garrow had killed someone and buried her in a cemetery. Mr. Belge went to the cemetery and discovered the body. He kept his trap shut, but the facts came out during Mr. Garrow’s trial. A lot of people were outraged about Mr. Belge’s behavior, and the District Attorney ultimately indicted Mr. Belge on a violation of the Public Health Law requiring a person to notify authorities upon the discovery of a dead body. The trial judge thankfully tossed the charges on the basis of the attorney client privilege. Here’s my favorite part of the decision: “Initially in England the practice of law was not recognized as a profession, and certainly some people are skeptics today.” The Appellate Division and finally the Court of Appeals upheld the dismissal, albeit reluctantly. The privilege triumphed!
As many of you know, I toil in the fertile fields of marital discord. It is an area of practice that many attorneys despise, but I love it. Where else do you get to hear about someone’s sex life and get to see his or her tax returns too? Unfortunately, I have been doing this long enough to be more excited about the tax return stuff than the sex stuff, but that’s just me. Every day I wallow in the world of criminal behavior and income tax fraud. When I last looked, adultery was still a crime in New York State. Believe it or not, I sometimes represent a person who has had sex with someone other than his or her spouse. Horrors. Am I to contact the District Attorney about this criminal revelation under the new rules of confidentiality? No way. And show me the matrimonial practitioner who has represented a hairdresser, waiter or a plumber, and I’ll show you someone who has heard that not all of the cash found its way to the good old 1040 or 1040EZ. I don’t mean to pick on plumbers here, but it is curious to me that in the matrimonial realm, some drive Cadillacs and have summer estates on Lake George and others drive 15 year old pick up trucks and live in trailer homes, but they all seem to earn $18,536 per year. I guess some are just more frugal than others. Am I about to drop a dime, er, quarter, on the IRS because some poor guy is having some troubles on the home front? Nope again. I liked things the old fashioned way. Simple and direct. That way I don’t have to think too hard. You tell me something, and it stays here. But given the state of things, the weakeniweakening of the attorney client privilege is on its way.
53 A.D.2nd 178
A robust organization of over 400,000 lawyers with fancy offices in Chicago, Illinois. They had the good sense to recently give our humble bar association an award for the efforts of the Hon. Randolph Treece and Jim Kelly for the establishment of our Minority Diversity Intern program.
DR (for “do it right”)2-106(F)
22 NYCRR 1400.2
83 Misc.2nd 186
41 N.Y. 2nd 60 (1976)
Penal Law Section 255.17 passed in 1881
“Never let your sense of morals get in the way of doing what's right." Isaac Asimov
“If I were to make public these tapes, containing blunt and candid remarks on many different subjects, the confidentiality of the office of the president would always be suspect.” Richard M. Nixon, disbarred New York lawyer
What will they think of next? There were always some things you could rely on. Rules and stuff that make your life sane, or at least seem sane. Such as, “The sun comes up in the East.” or “If you ask a judge when that decision will be rendered, you’ll lose.” or “The Red Sox will not win the World Series this year, but they’ll act like they will until September.” Truisms. However, I read recently that the American Bar Association has just altered the Model Code of Professional Responsibility to permit lawyers to use their discretion to disclose client confidences in the area of criminal conduct and fraud. I know. I thought this “Code” had to do with Naomi Campbell and Heidi Klum too. Chin up, smile, don’t trip, etc. Actually, it is the prototype for the New York Lawyers Code of Professional Responsibility, and these changes will undoubtedly be considered in New York in the near future. So, is nothing sacred anymore? The impetus for all this comes from the Feds, as you can well imagine. You see, the Securities Exchange Commission adopted a rule that requires lawyers to report fraud to corporate boards, and it is considering making the lawyers report to “the regulators” i.e. Big Brother. Then the Internal Revenue Service tries to make lawyers fess up about clients who purchased questionable tax shelters. The Federal Trade Commission has sued to make lawyers disclose privacy policies with clients. Not to be outdone, those stalwarts of personal freedom, the Justice Department now claims that conversations between terrorism suspects and their lawyers are subject to eavesdropping. Then the chief justices of all 50 states adopted a rule favoring the proposal to modify the client confidence rules and voila, the ABA responds. Hmmm.
Here’s an example. Under the model code, a lawyer is allowed, but not required, to disclose a client's confidences to prevent or rectify a crime by the client that would cause substantial financial harm to others, if the lawyer's services were used to further the crime. I’m not sure I even know what that means, but it is certainly a radical change from the absolute rule, i.e. what you say to an attorney cannot be revealed by the attorney under any circumstances without your consent. That rule I can understand. Now I am supposed to figure out when and if I should blow the whistle on some poor sap who sought my advice? I don’t think so.
With all due respect to the 50 chief justices, I have always been in favor of expanding the confidentiality rules. After all, if what you say to your podiatrist is confidential (See Section 4504 of the CPLR if you don’t believe me.), then why not someone who really hears your moral failings, like your bartender or your barber? I am a black and white kinda guy. If you tell me a rule, and if I can remember it, I can usually apply it or convey it to a client. Why for gosh sakes, the New York Code of Professional Responsibilities MAKES me give matrimonial clients a Statement of Rights and Responsibilities in the initial conference. And what’s in there, pay tell, in addition to some cockamamie language requiring me to be courteous to my client? (Sure, I should be courteous anyway. But doesn’t it bug you that the client has no obligation to be courteous to the attorney? Or as one of my more jaundiced matrimonial practitioners quipped, “If I can’t have sex with them, why do I have to be courteous to them?”) “You are entitled to an attorney who will preserve your confidences and secrets that are revealed in the course of the relationship.” Not that’s a rule I can understand! So now do I have to make some ethical determination if it is fraud, causing substantial harm to others, or furthering a crime? I’m not real good at these gray areas, and I’ll tell you why.
Remember Francis Belge? Of course not. You’re too young. He was assigned in 1973 to represent a really bad guy, Robert Garrow. During the attorney client discussions with Mr. Garrow, Mr. Belge learned that Mr. Garrow had killed someone and buried her in a cemetery. Mr. Belge went to the cemetery and discovered the body. He kept his trap shut, but the facts came out during Mr. Garrow’s trial. A lot of people were outraged about Mr. Belge’s behavior, and the District Attorney ultimately indicted Mr. Belge on a violation of the Public Health Law requiring a person to notify authorities upon the discovery of a dead body. The trial judge thankfully tossed the charges on the basis of the attorney client privilege. Here’s my favorite part of the decision: “Initially in England the practice of law was not recognized as a profession, and certainly some people are skeptics today.” The Appellate Division and finally the Court of Appeals upheld the dismissal, albeit reluctantly. The privilege triumphed!
As many of you know, I toil in the fertile fields of marital discord. It is an area of practice that many attorneys despise, but I love it. Where else do you get to hear about someone’s sex life and get to see his or her tax returns too? Unfortunately, I have been doing this long enough to be more excited about the tax return stuff than the sex stuff, but that’s just me. Every day I wallow in the world of criminal behavior and income tax fraud. When I last looked, adultery was still a crime in New York State. Believe it or not, I sometimes represent a person who has had sex with someone other than his or her spouse. Horrors. Am I to contact the District Attorney about this criminal revelation under the new rules of confidentiality? No way. And show me the matrimonial practitioner who has represented a hairdresser, waiter or a plumber, and I’ll show you someone who has heard that not all of the cash found its way to the good old 1040 or 1040EZ. I don’t mean to pick on plumbers here, but it is curious to me that in the matrimonial realm, some drive Cadillacs and have summer estates on Lake George and others drive 15 year old pick up trucks and live in trailer homes, but they all seem to earn $18,536 per year. I guess some are just more frugal than others. Am I about to drop a dime, er, quarter, on the IRS because some poor guy is having some troubles on the home front? Nope again. I liked things the old fashioned way. Simple and direct. That way I don’t have to think too hard. You tell me something, and it stays here. But given the state of things, the weakeniweakening of the attorney client privilege is on its way.
53 A.D.2nd 178
A robust organization of over 400,000 lawyers with fancy offices in Chicago, Illinois. They had the good sense to recently give our humble bar association an award for the efforts of the Hon. Randolph Treece and Jim Kelly for the establishment of our Minority Diversity Intern program.
DR (for “do it right”)2-106(F)
22 NYCRR 1400.2
83 Misc.2nd 186
41 N.Y. 2nd 60 (1976)
Penal Law Section 255.17 passed in 1881
