Published 3/16/2004

While lawyers often are valued for such canine-like attributes as aggression, persistence and even viciousness, loyalty is their most essential attribute. With confidentiality, it represents a type of legal Hippocratic oath: that we will do no harm to our clients.
Two disturbing trends that reduce confidentiality guarantees have surfaced recently: a rise in the number of exceptions to attorney-client confidentiality and an increase in lawyers discussing cases at the expense of their former clients.

The latest example came this month in the case of Scott Peterson, who is on trial for the murder of his wife, Laci, and their unborn child. Judge Alfred Delucchi ruled that the prosecution could use audiotapes that police secretly recorded of Peterson speaking with his first attorney before he was charged. Peterson sought to have these tapes excluded as a violation of his attorney-client privilege, but Delucchi ruled that the content essentially was inconsequential.

Many Americans, no doubt, are eager to hear the tapes and gain glimpses of Peterson in his most unguarded moments. But the rapid loss of confidentiality in attorney-client discussions should concern us far more than what Peterson said to his lawyer. If people — or companies — are worried that their conversations might be used against them, they will lose trust in our government.

The attorney-client privilege, which goes back to the days of Elizabethan England, encourages clients to speak honestly with their lawyers so the attorneys can give legal advice and stop the clients who are contemplating questionable acts. But if the confidentiality of citizens’ conversations with their attorneys can be subject to case-by-case waivers — as Peterson’s has been — Americans never will really know what will happen to the information they provide to their lawyers. That possibility naturally will encourage clients to be less candid. For lawyers, the loss of guarantees of confidentiality creates a real possibility that their representation could harm a client. In the Peterson case, the lawyer actually became a tool of the police by lowering his client’s defenses after giving him what turned out to be a false assumption of confidentiality.

This risk is becoming particularly acute in the federal system. U.S. Attorney General John Ashcroft has led a highly controversial attack on confidentiality by taping conversations between prisoners and their attorneys in jail while seeking information on terrorism. At the same time, the courts have rolled back protections by requiring attorneys to give evidence against their clients in a widening array of cases, including turning over incriminating evidence of a crime by the client.

The American Bar Association, feeling the heat from the recent corporate scandals, recently reduced client-lawyer-confidentiality protections by allowing attorneys to give incriminating evidence against their clients to prevent fraud. Federal agencies such as the Securities and Exchange Commission have mandated similar exceptions. Previously, attorneys could break confidentiality only if a client risked injuring or killing someone.

These policies will discourage open and frank discussions between attorneys and their clients. They also will encourage attorneys who want greater freedom to discuss past cases for their personal benefit. Lawyers increasingly are going public with discussions of subjects that were once considered confidential or inappropriate. The “tell-all” book is all the rage among attorneys. After the O.J. Simpson case, his defense attorney, Robert Shapiro, received $1.5 million for a book that directly contradicted his client’s core defense — that police were racially motivated to frame him. As confidentiality rules decline, some attorneys will feel greater license to talk about their clients and cases.

Most recently, Larry Feldman, the former attorney of the boy accusing singer Michael Jackson of sexual misdeeds, has done the television circuit to discuss his early representation of the boy and his mother. While Feldman generally has supported the mother and repeatedly stressed that he did not want to waive confidentiality, he has revealed at least one fact from their meetings that could undermine her expected testimony: Feldman has stated that the mother never raised the subject of abuse of the child in their initial meetings.

Any loss of lawyer-client confidentiality comes at great cost to our society. The right to speak freely is a basic civil liberty that prevents false confessions and other abuses. Further, lawyers able to talk freely to their clients frequently are able to stop companies or individuals from acting irresponsibly.

The erosion of this privilege must be halted. Federal, state and bar rules governing such protections need to be strengthened, not weakened. Surveillance laws, for example, should bar the secret taping of attorney-client conversations unless a judge believes an attorney is in the process of committing a crime.

Civil liberties are under constant attack under the guise of battling terrorism. Any loss of the guarantee of confidentiality between lawyers and their clients could not come at a worse time for society.