Man Without Qualities

Monday, August 11, 2003

All Power To The Lawyers!

A New York Times editorial cluelessly notes: One proposed change to the A.B.A.'s Model Rules of Professional Conduct permits, but does not require, lawyers to speak up when they see a client committing fraud, or other crimes, that could substantially injure the financial interests of another party.

Let's see. Will a lawyer considering whether to use this right - keeping in mind that there is no obligation - consider whether the lawyer gets lots of money from the client? YOU BET THAT LAWYER WILL.

Will a client who knows the lawyer is aware that the client has been committing fraud or other crimes think twice about firing the lawyer? YOU BET THAT CLIENT WILL - BECAUSE THE LAWYER WILL HAVE THE RIGHT TO SEND THE CLIENT TO JAIL.

This proposed change will give lawyers a huge new helping of power. Under current rules, lawyers are prohibited from making this kind of disclosure without client approval. In effect, the information and the privilege belong to the client. Under the proposed changes, the information and the privilege would in effect belong to the lawyer. MEANING THAT SUCH A CLIENT WILL BE ESSENTIALLY "OWNED" BY THE LAWYER, WHO WILL HAVE A PERFECTLY LEGAL AND ETHICAL BLACKMAIL POSITION AGAINST THE CLIENT UNDER THE PROPOSED NEW RULE. Isn't that nice.

Of course, the Times is so witless there isn't even a trace that the editorialist understands what the American Bar Association is up to, as the editorial intones: The initiatives deserve the support of the A.B.A.'s House of Delegates because, in the post-Enron era, the legal profession should be holding itself to higher ethical standards. Nor is there a trace of understanding that a lawyer who could reveal such information but doesn't has a huge conflict of interest with respect to a client - especially a rich, paying client - with respect to whom the lawyer is supposed to have an intense fiduciary duty. Every time.

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