Ethics

NKU devoted an issue of its law review to "Navigating the Changing Ethical and Practical Expectations for E-Discovery."  

Rebecca Aviel writes on a topic I've been following: the proliferation of federal statutes that over-ride or modify the legal ethics rules.  The abstract of her article, "Resolving Confidentiality Conflicts" is:

Lawyers are finding themselves with an ever-multiplying set of obligations to provide information about their clients to federal, state, and local governments. Scattered throughout disparate regulatory schemes seeking to combat terrorism, tax evasion, child abuse, and more, these required disclosures implicate confidential information and raise questions about the limits, if any, to legislative and administrative interference with one of the mainstays of the lawyer-client relationship. The Model Rules of Professional Conduct sidestep these questions. As of 2002, Rule 1.6(b)(6) expressly permits attorneys to reveal confidential client information to comply with ?other law? or court order. However, the Model Rules don?t make such disclosures mandatory, and attorneys seeking guidance on the scope and operation of this seemingly gaping exception to the duty of confidentiality won?t find it in the commentary. In addressing this provision the drafters have simply said that ?other law may require that a lawyer disclose information about a client. Whether such a law supersedes 1.6 is a question of law beyond the scope of these rules.? This article seeks to answer precisely that question: when and why do other sources of law trump an attorney?s obligation to maintain client confidences?



To answer this question, I develop a set of models that courts, legislatures, and disciplinary authorities might use in assessing conflicts between confidentiality and ?other law.? Disclosure obligations rooted in federal law offer the prospect of applying traditional preemption principles to any conflict with state ethical provisions, and I explore those principles to assess whether the ?federal supremacy? model offers a satisfying account. If so, it is a necessarily partial one, and I thus investigate alternative descriptive theories, including notions of separation of powers and democratic accountability, that might explain why confidentiality must yield when federal supremacy is not at stake. I then consider whether these decisions are driven primarily by substantive evaluations of competing policy concerns, in which the sanctity of the attorney client relationship is weighed against, for example, the importance of reporting suspected child abuse. If this ?interest-balancing? model best describes the current approach, by what set of principles do we assess whether a particular policy objective will be considered more or less important than the policies that underlie the lawyer?s confidentiality obligations? After exploring some of the hazards of an ad hoc approach, I consider whether courts evaluating the conflict between confidentiality and other law should impose something like a clear statement rule on lawmakers who would have the latter trump