Originally submitted by: jadelay

This week is Ethos Week at Eastern Michigan University's College of Business. Over the last few days, professionals from the business world have been offering EMU students and the interested public a glimpse of their working lives, in particular those situations when they are confronted with moral dilemmas. I went to one of the talks yesterday given by Donald Campbell, an attorney and adjunct professor of law, whose expertise is professional responsibility and legal ethics. The topic of his discussion was the historical role and appropriate balance between client confidentiality and just disclosure in the legal profession. Mr. Campbell's view, in brief, was that confidentiality has evolved to the point where it now functions in many ways to protect lawyers rather than the justice system they are supposed to serve. To show this, he outlined several important case rulings where attorneys remained quiet when the interests of justice should have given them license to breach their silence. So, for example, in the case he outlined where justice was most miscarried: an innocent man was convicted to death row even though the attorneys of the real killer knew their client was the guilty party and had instructed them to keep this information confidential until he died. So, what the lawyers knew, according this account, put an innocent man not only in prison, but on death row. While I can see the extreme injustice in this case, I came away from this very memorable and challenging talk with another view of confidentiality than the one Mr. Campbell recommended. One is an obvious fact that I often forget. Ethical dilemmas and moral messes are this way because, by definition, they involve cherished principles we believe we have to choose between or give up. Or they lead to consequences that are all harmful no matter what we do. This is often true with confidentiality. The principle that causes moral messes, and thus ethical handwringing for lawyers with confidentiality is: on the one hand, the need for you as an attorney to tell the truth (and nothing but the truth...) and on the other hand, the need for the person you are representing (your client) to tell the truth. In the latter case, confidentiality is essential to lawyers for the reason that the people who come to seek lawyerly expertise have been accused of wrongdoing. Our legal system is designed to incorporate confidentiality so that people accused of wrongdoing feel they can be truthful and tell the truth to the attorneys who are to defend them against the state, organization or individuals who charge them with wrongdoing. In fact, it would be hard to imagine an attorney who in the most basic terms would "rat" on his client if the attorney "knew" that the client was, in fact, the wrongdoer. That would go against the whole idea of providing an accused person an opportunity to a fair defense in a court of law, the real place where we are supposed to get to the truth about the matter at hand. If we can come up with a new way to get people to tell the truth besides giving them a truthfulness serum, I still think that confidentiality is one of the best incentives to get people in trouble with the law to tell their tales to the attorneys committed to defending them. The system is set up to do the truth sorting and deciding in trials and before judges. To put the responsibility on lawyers to make such decisions, seems to be a greater travesty of justice and an undermining of the legal system. At the same time, I think the legal system requires reform in order to prevent the very travesties of justice that Mr. Campbell eloquently outed. I just don't think that substantially changing the confidentiality rules for lawyers is going to change the inequities in the legal system that we have created to get to the truth, the whole truth and nothing but...