There are certain big cases that are featured in every legal ethics casebook. In the material on Rule 1.6, Confidentiality of Information, those cases include Spaulding v. Zimmerman and the “Buried Bodies” case. These are compelling cases. Each of them presents a stark contrast between lawyers’ ethical duties and what are probably the moral intuitions of most students. In Spaulding, we examine the conduct of defense lawyers who could have done something to warn the innocent plaintiff of a life-threatening injury uncovered in the medical examination by the defendant’s medical expert. What sort of moral monster, we expect our students to ask, would do such a thing? In the Buried Bodies case, two court-appointed lawyers learn (in part through hypnosis–one of the peculiar elements that make this far from a typical capital case) that the defendant had killed two missing girls, and the lawyers do not reveal this information to the grieving families. Again–what sort of moral monster would do such a thing? Is this what I’m expected to do as a lawyer? At this point, if not before, it becomes clear which students have no intention of going into criminal defense.
This year I rethought my approach to these cases, and greatly reduced the class time we spent on them. There is a danger that focusing on such “big moral issues” cases teaches the wrong lesson: that issues of legal ethics are rare, perhaps once-in-a-lifetime situations, far removed from the practice lives of most lawyers. As an experienced lawyer once told me upon learning I taught legal ethics: “Oh, we had an ethics issue, once.”
Consider the actions of Frank Armani and Francis Belge in representing Robert Garrow in the Buried Bodies case. Neither of the lawyers wanted the case; Armani asked to be excused, but Garrow refused to work with another lawyer, and the judge did not want such a high-profile case to be tainted by the possibility of Garrow defending himself. It was difficult enough for Armani and Belge to defend such a distasteful defendant in that small community; when it was discovered they knew the missing girls were dead, and where their bodies had been hidden, they were subjected to death threats, criminal charges, and disciplinary complaints. The criminal and disciplinary actions were dismissed, but both lawyers suffered lasting damage to their careers.
Among ethics scholars and the criminal defense bar, Armani and Belge are heroes. Faced with one of the most difficult choices they would ever make, they acted in accordance with their ethical duties. As Thomas Morgan said at an ABA CPR Conference in 2007, theirs is “a central case in our development and understanding of what it means to be a lawyer.”
What I tried to emphasize to my students this week was that, while the anger and hatred of the community that the lawyers suffered was real, from the perspective of the ABA Model Rules, this was not even a difficult case. Their duty could not have been clearer: their client’s confidentiality must not be violated. What made this a difficult problem was not determining the ethical choice: it was carrying through on that choice.
I have a theory. Without in any way diminishing the integrity of Armani and Belge in protecting their client’s confidentiality, I suggest that their actions were not all that heroic–if by heroic one means something that most of us could only aspire to, and hope to live up to if we were ever in their situation.
I asked my students what they would do in Armani and Belge’s situation. As usual, the class was pretty evenly divided: half felt they would keep the information confidential, and half thought they would find some way to disclose the information–either anonymously, hoping to avoid detection and disciplinary charges, or publicly, and willing to accept the consequences.
I suggested to my students, however, that if they were in Armani and Belge’s situation, almost all of them would do the “right” thing and protect Garrow’s confidentiality.
Armani and Belge found themselves faced with one of those “big moral issues.” The ethical weight of their decision whether or not to disclose hit them in the face. There was no possibility that they could avoid the conclusion that this was a defining moment in their careers as lawyers. To breach confidentiality and betray their client–as loathsome as he might be–was something like an existential challenge to their identity as good lawyers. To breach confidentiality would mean seeing themselves as failures.
In most ethical situations that lawyers face, the duty is not nearly so clear. Situations that might be fraught with ethical problems, such as whether to accept or continue a representation when a conflict begins to appear, can be overlooked. Ethical fading results in a dulled awareness of ethical situations, and problems that present ethical challenges are easily rationalized as business decisions.
This is why I worry about that lawyer whose firm faced an ethical issue, once. Ethical issues arise every day. Most are properly resolved with little difficulty. But the lawyer who doesn’t see them, and who is not on the lookout for ethical choices, is a lawyer at risk.