By Gail A. Stafford
In our last article we addressed unintentional violations of the Rules of Professional Conduct. This part considers intentional violations. These occur when the lawyer fully appreciates that his conduct violates a rule, but he proceeds anyway. Why do lawyers intentionally violate known prohibitions? One reason may be that the rule is flawed, in that it is unrealistic or does not serve its purpose. The problem often is that the rule sweeps so broadly that compliance is impractical. In most cases the lawyer could adjust her behavior to conform to the broad proscription, but she chooses not to do so. An example of a flawed professional rule is Model Rule 1.6, which prohibits a lawyer from revealing any “information relating to representation of a client.” There are exceptions to this duty of confidentiality, but the basic rule remains an overly broad dictate that does not reflect the realities of law practice. Many lawyers do not appreciate that the rule is so broad, which leads to violations due to ignorance, but even lawyers who fully appreciate the breadth of their duty nevertheless choose to violate the rule. The literal terms of Model Rule 1.6 bar a lawyer from discussing any information concerning her representation of her client under all but a narrow class of excepted circumstances. The Rule seems to apply even to information that the lawyer got from a public source and to information that is not adverse to her client. The literal terms of the rule also bar the lawyer from engaging in “shop talk” with lawyer friends and getting advice from others, including ethical advice. Even the time-honored tradition of telling “war stories” is seemingly within the Model Rule 1.6 prohibition.
A lawyer theoretically could conform to Model Rule 1.6 by refraining from ever talking about her work or seeking outside advice. However, leading scholars have argued that some forms of prohibited revelations, such as lawyer shop talk, not only are commonplace but are valuable to the training and support of lawyers. Accordingly, many scholars advocate liberal interpretation of Model Rule 1.6 to allow a number of these common violations. Lawyers sometimes intentionally violate laws for purely selfish or cynical reasons. For example, some lawyers regularly file”dilatory motions to dismiss.” The motions raise defenses, often all of the defenses listed in the procedural rules as available bases for a pre-answer motion to dismiss the suit, even though the lawyer does not believe that the defenses actually apply to the case. The lawyer is instead buying more time to file an answer. A dilatory motion to dismiss violates several ethical and procedural rules. Model Rule 3.1, for example, bars a lawyer from asserting or controverting an issue “unless there is a basis for doing so that is not frivolous.” Model Rule 3.2 requires a lawyer to make “reasonable efforts to expedite litigation.”
Finally, Model Rule 3.4 makes it an independent ethical violation for a lawyer to “knowingly disobey an obligation under the rules of a tribunal.” How do we prevent this type of routine violation? First, heightened enforcement might stop some forms of routine rule violations. Procedural rules and the rules of professional conduct could break lawyers of their bad habits. Education is the second front in stopping routine rule violation. To be effective, education should address not only the basic duties of lawyers but also the practical reality of their breach. Finally, consider the small category of “noble” rule violations, in which lawyers engage in independent and ethical thinking and choose to defy the rules to achieve a perceived higher good. Under Model Rule 1.6, a lawyer is limited in the circumstances in which she can reveal a client confidence. She may disclose a confidence when the client intends to commit a crime which will likely result in imminent death or serious bodily injury. Model Rule 1.6 does not allow a lawyer to reveal her client’s intention to commit a lesser crime, such as financial fraud. A lawyer faced with a client’s admission that he intends to commit financial fraud, however, may feel a moral imperative to act to prevent that crime. Defiance, even if honorably motivated, may cause more harm than good. Model Rule 1.6 is based on the belief that strict confidentiality encourages clients to be completely honest and forthcoming with lawyers. In the financial fraud scenario, the client’s expectation of strict confidentiality gives her lawyer an opportunity to intercede and persuade the client to comply with the law. Under one view, without the promise of confidentiality, the client would never come to the lawyer and therefore more likely would commit the crime. The counter view is that crime is more likely lessened by the lawyer breaching confidentiality and acting to prevent the crime. Lawyers will disagree with the above-stated policy choices. For this reason, the legal profession cannot stop lawyers from defying certain rules perceived to affect morality. The legal profession should encourage independent thinking and ethical debate. However, the legal profession should educate lawyers regarding all the relevant factors underlying the rules and the risks associated with breaching them. In conclusion, there are many reasons lawyers violate rules of professional conduct. Many violations are due to human nature. Recognition of this fact will permit legal educators and bar authorities to concentrate on steps that might improve compliance.