Thursday, September 27, 2012
Linda Galler (Hofstra), Ladder Safety: Disclosure of Corporate Client Confidences, 6 Brook. J. Corp. Fin. & Com. L. Law 553 (2012):
This Essay demonstrates that the theory underlying ABA Model Rule of Professional Conduct 1.13(c), granting lawyers the option to reveal certain client confidences on a discretionary basis, doesn’t work. Despite some compelling reasons for permitting disclosure of clients’ “bad” behavior, economics dictate that it should be a rare case in which a lawyer will actually disclose. The Essay utilizes the facts of a recent case involving in-house certified public accountants who revealed to state tax authorities that their employer had not been compliant with state tax laws, and were fired from their jobs. In thinking about whether similarly situated attorneys could be fired or would violate their professional ethical duties if they engaged in the same acts, the Essay reviews and reflects upon the existing commentary on organizational/corporate lawyers’ duties of confidentiality and the Model Rules’ up-the-ladder reporting requirements. The conclusion: Even if the Rules permit disclosure in some circumstances, the real possibilities of being fired or tagged as a lawyer who can’t be trusted with a secret are simply too great for even well-intentioned lawyers. The rule, then, is unlikely to encourage lawyers to disclose.
The argument is made through a brief Essay rather than a longer analytical piece for two reasons. First, there exists ample and excellent literature filled with good and comprehensive analyses of the rules. What is lacking is an examination of how theory plays out in the real world. Second, the Essay is meant to provoke thought both among scholars, who function primarily in the realm of theory, and practitioners, who reside in the world of practice.