Lawyers keep secrets locked up — so they get asked to do the dirty work

Lawyers seem to be at the center of a lot of recent scandals

Published April 22, 2018 10:00PM (EDT)

Michael Cohen (AP/Andrew Harnik)
Michael Cohen (AP/Andrew Harnik)

This article was originally published on The Conversation.

Lawyers seem to at the center of lot of scandals lately.

President Donald Trump’s personal lawyer, Michael Cohen, whose office and hotel were raided by the FBI, is only the latest example. Harvey Weinstein’s law firm hired the private investigator who spied on Rose McGowan, one of his sexual assault accusers. A series of lawyers were involved in the hiring of former spy Christopher Steele, who produced the infamous Russian dossier.

Why does it seem that whenever something unravels in the news, there’s a lawyer in the mix?

A cynical take might be that the legal profession attracts people willing to cut moral corners. Or that it’s more of an Anakin Skywalker story, where the legal profession is so corrosive that it turns good people into jerks.

Based on my academic work, and as a lawyer myself, I actually think there’s a different explanation, that has less to do with the people and more to do with the laws governing secrecy.

Legal secrets

I recently taught a course called legal secrets, where we explored the rules governing all sorts of confidential matters, from trade secrets to classified information.

The course revealed that every type of legal secret is susceptible to misuse. The stronger the legal protection, the greater the potential for misuse.

And attorney secrecy rules offer the strongest protection of all.

There are actually three different types of legal rules that work together to protect secrets entrusted to lawyers.

How the law protects your secrets

First, there’s the attorney-client privilege — declared “dead” by the president after the Cohen raid — which protects communications between lawyers and clients seeking legal advice.

The concept of a “privilege” is similar to the way it is used in everyday life — for example, warning your teenager that having a cellphone is a “privilege.” It’s a special perk not available to everyone. The attorney-client privilege affords lawyers the freedom to withhold these communications from disclosure in a legal proceeding like a trial.

It’s hard to convey how ridiculously valuable the privilege is when you’re in the middle of a lawsuit. In civil cases, procedural rules require both sides to disclose all information that might be relevant. That can include information that is embarrassing or financially sensitive, or even a company’s trade secrets. But legal communications with a client are exempt and don’t have to be shared with the other side.

Secrecy related protections extend beyond just legal proceedings, however.

Legal ethics rules prohibit lawyers from disclosing any “information relating to the representation of a client” without the client’s consent. A lawyer that violates this ethical rule risks losing her license to practice law.

This ethics rule is powerful because it adds credibility to the lawyer’s promise of secrecy. It’s what Nobel prize-winning economist Thomas Schelling called a “commitment strategy” — taking some action that makes it very costly to renege on a promise or threat. In the same way that an army might burn a bridge to prove it won’t retreat, the threat of disbarment serves to persuade clients that lawyers will keep secrets safe.

Attorneys have a third secrecy shield at their disposal rather clunkily called the “attorney work product doctrine.”

This principle shields written materials prepared by a lawyer in connection with litigation, although it is not absolute. The doctrine is also used to justify a rule that shields a lawyer’s communications with outside “experts,” as long the expert is not slated to testify in litigation.

Armor-plated attorneys

This trifecta of secrecy-related protections makes lawyers the transportation equivalent of an armored car with tinted windows. It is intended to convey and provide security for its occupants when they are at their most vulnerable (assuming, of course, they can afford it).

At its best and most iconic, attorney secrecy protections are a cherished part of our justice system. They represent the difference between an innocent criminal defendant who provides a vindicating piece of evidence to her lawyer and one too worried to reveal it.

But armored cars are also valuable to those who would misuse them to avoid scrutiny or accountability. Cigarette companies discussed the toxicity of tobacco smoke in emails inappropriately labeled as “privileged” or “work product” in hopes that they would later be shielded from discovery in litigation. Likewise, people like Harvey Weinstein have an incentive to use lawyers to hire outside investigators in hopes that the lawyer’s status as intermediary will shield the arrangement from view.

That is why there are a few limited exceptions to the rules regarding attorney secrecy, including what is known as the “crime-fraud exception.” In other words, all of the protections fall away when a lawyer’s services are used to perpetuate a crime or fraud.

Lawyers are expected to serve as zealous advocates for their clients, but they also have broader duties to maintain the integrity of the justice system. A powerful client who goes too far may discover, perhaps too late, that the keys to the privilege can be taken away.

Elizabeth C. Tippett, Associate Professor, School of Law, University of Oregon

By Elizabeth C. Tippett