Farewell to the Prime Directive?

ProEthics, Ltd. 2002
Jack Marshall

Strong forces are at work in America that threaten to weaken an attorney's traditional duty to protect a client's confidences, one of the most basic tenets of legal ethics. The recent corporate scandals have intensified calls for corporate attorneys to become watchdogs on their own clients, and the new Sarbanes-Oxley bill is pushing the profession in that direction. Loud talking heads like Fox News' Bill O'Reilly have been assailing the duty of criminal defense attorneys to withhold knowledge of their client's guilt from the jury, while the American Bar Association, spurred by a spate of rare and bizarre cases that have been dramatized on such popular television shows as "Law and Order" and "The Practice, " is preparing to add several new exceptions to its Rule 1.6, which says that "Except with a client's consent, an attorney shall not reveal information relating to the representation of a client." What if the client has AIDS, and doesn't want a spouse to know? What if revealing a confidence will save a life, prevent devastating financial losses, or prevent an innocent from imprisonment or execution? Soon an attorney, meeting with a client for the first time, will not give the traditional speech about how "anything you tell me is absolutely confidential." Instead, the attorney will have to recite a long and bewildering laundry list of exceptions, leaving the client to try to edit his revelations.

Most Americans, and perhaps most attorneys, see this as a positive trend, bringing the ethics of the legal profession more into alignment with the sensibilities of the public. But there is reason to be wary. The duty of confidentiality is more than just an ethical rule to be amended and diluted every time it leads to an uncomfortable result. It is truly a prime directive of the legal profession, and must be examined in that light.

Even if you've never strapped on Spock ears and gone to a Trekkies convention, the chances are that you have heard of "The Prime Directive," a cornerstone of TV's "Star Trek" universe It was the one rule that a starship captain (Kirk, Picard, Janeway ... take your pick) could not break: "It is forbidden to all spaceships and members of Starfleet to interfere with the normal development of any culture or society." The Prime Directive was such an important principle that it trumped all other considerations. I quote from the Federation's Starfleet Manual: "This directive is more important than the protection of spaceships or members of Starfleet. Losses are tolerated as long as they are necessary to observe this directive."

The Prime Directive was all-important because it went to the core of Starfleet's mission, which was to observe developing civilizations and cultures throughout the galaxy. If the observers imposed their values and will upon vulnerable developing civilizations, they would be using their advanced technology to play God, warping the natural evolution of life. In adopting a Prime Directive to prevent abuse of a sacred mission, Starfleet was no different from other professions, for they all have prime directives, rules of conduct that are elevated to special prominence by the nature of the profession's role in society. Even though observing prime directives often places a profession at odds with the values of the society it serves (a starship would not overthrow a regime that enslaved its people or committed genocide, even though an average citizen would declare it immoral not to do so), professions hold fast to these over-riding principles because they believe they cannot perform their roles without them.

In the legal profession, the duty of an attorney to keep a client's confidences has been a prime directive for nearly 500 years; so long, in fact, that it often seems that lawyers no longer remember why the duty exists. In critiques of the duty, commentators routinely cite maintaining the "attorney-client relationship" as the primary justification. A client must trust his attorney (the word "attorney" derives from the Middle French for "one who is trusted") and feel free to tell the attorney everything and anything without fear or betrayal. This is true, but it is too narrow a perspective.

In a perfect society, every citizen would have complete knowledge of the laws, and the ability to understand and obey them. But the volume and complexity of modern laws, not to mention the confounding factors of local variations and procedural quirks, make even an imperfect mastery of them a matter of concerted study. This situation is inherently unjust and wrong: why should citizens be required to abide by rules they neither know nor understand? Pragmatic considerations, however, make this the state of law enforcement. Indeed, the convention in the United States is that "Ignorance of the law is no defense;" citizens are presumed to know the laws, even though it is impossible for them to do so.

Thus we have the need for the legal profession: individuals who devote their lives to making a most basic right available to citizens of a society. That right is the ability to avail themselves of the society's laws, and to be the beneficiaries of their protection, rather than the unwitting victims of insidious traps in laws buried in statute books. If we believe that this is indeed a right, based in common sense and fairness, then there should be no risk or sacrifice incurred by a citizen seeking the assistance of a lawyer to work with, through, and around the laws. The lawyer should have no other duty other than to help the client act as the client would if he himself possessed the lawyer's knowledge and skill. This is the source of the other prime directive of the legal profession, (also under attack): zealous representation of the client.

If the client would use that knowledge badly, the attorney has a remedy: quit. If the client wants to use the attorney's expertise to break the laws, then there is no duty; that is not the attorney's role, and thus no attorney-client relationship exists. But if an attorney agrees to take on the professional duty of helping a client make use of the laws that are the property of every citizen (just as every citizen is subject to them), the attorney must not divulge information that the client would not divulge, against the client's interests. For this is not merely a betrayal of the attorney client relationship, though it is certainly that. It is a betrayal of democratic principles. If a nation is to make its laws so complex and extensive that the average citizen cannot learn them, then it must allow the citizen to employ a professional who can remedy that intolerable situation without simultaneously forcing the citizen to take a potential adversary into his confidence. The alternative is to expose citizens to a legal "Catch-22." Perhaps I should say "another legal Catch 22." The fact that citizens have to pay attorney fees to use their own laws is already an institutionalized wrong.

That is why the duty of confidentiality has long had prime directive status. Misfortune may result and others may be harmed by a lawyer's silence, but if we impose a barrier to the citizen's use of the laws, even to controversial ends, the legal profession's mission has been aborted. Certainly each weakening of the attorney's prime directive can be powerfully defended on ethical grounds, just as violations of the Prime Directive in the mythical Star Trek universe often would save lives and prevent tragedy. But the price of making the prime directive subordinate to these other concerns is very high, perhaps unacceptably high. It means that the laws become the masters of the average citizen, rather than the other way around.

That is not what America's founders had in mind, and they might well have embraced the absolutism of Star Trek. To tamper with the Prime Directive is to put democratic principles at risk. Perhaps it must be done, but it ought to be done with great care.