When Is It Ethical for an Attorney to Betray a Client's Confidence? Term Paper

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Attorneys of every ilk are consistently and constantly faced with decisions that test their ethical considerations. Corporate attorneys faced with illegal activities, divorce attorneys faced with familial consequences, defense attorneys defending sometimes guilty clients, medical attorneys pursuing lawsuits on trivial matters, and even attorneys who represent politicians and policy makers are all examples of attorneys who, at some point in their illustrious careers, are faced with ethical situations that will test their mettle. Oftentimes attorneys will necessarily be taken into their client's confidence regarding situations that are questionable. The question this paper will focus on is 'when is it ethical for an attorney to betray a client's confidence?' This question is a significant one in that most attorneys are going to be faced with ongoing situations that will cause them to make ethical decisions based on their beliefs and belief systems.

Importance

The importance of the study is that it can provide fodder for attorneys, or individuals who are considering becoming an attorney, to consider regarding how they will act or react in situations regarding ethics. Current literature used by the study is an attempt to provide ethical situations, as well as solutions or pathways for consideration by those interested individuals.

Methodology

The methodology employed by the paper is primarily based on the current literature and a summary of that literature. The validity of the methodology will be contained in the interpretation of the literature, does it present certain situations that justify action in betraying confidence, or does it not?

Reliability of the literature used is based almost entirely on the ethics of the researchers who completed the studies. There will almost always be some corners that are cut in certain literature, and since this particular study is based entirely on research of the literature, a question will always remain as to the complete reliability of the literature.

It is suggested that, for the most part, since peer reviewed articles and other articles of repute were used in this study, then the reliability of that literature can be said to be of a higher level than if other literature had been used.

Literature Review

Ethics, especially regarding attorneys, is a popular literature subject. With the dearth of attorney specialties and legal matters that require an attorney's attention, it should be a relatively simple matter to address the issue of ethical decisions by attorneys in a variety of situations. Many of the situations covered in this study present data and scenarios that have been addressed throughout the last decade concerning ethical situations faced by attorneys. Much of the literature presents data from a number of different legal viewpoints, or industries including (but certainly not limited to) divorce, business, legal and medical fields.

Each area or specialty presents its own ethical dilemmas and situations. It is especially important to note that the literature presents numerous situations on how an attorney makes an ethical decision, and how their belief systems affect those decisions.

One recent study showed that situations can arise in some areas where most people would never think that such events can take place. The study examined the effects of the McDade amendment to a bill passed by Congress in October, 1998 (Harvard, 2000).

The bill made sweeping changes to the ethics rules that govern attorneys, and also required that federal attorney's actions be governed by the ethics rules of every state in which attorneys engage in their duties. According to the article, the problem that faces the federal attorney is that not only will an ethics violation raise the 'threat of disciplinary sanctions against an attorney, but also the specter of evidence exclusion in a criminal prosecution -- or even the dismissal of criminal charges against a defendant'. The requirements will certainly put a damper on federal attorneys in making ethical decisions.

Most observers would likely be skeptical of any federal courtroom being plagued by any ethical circumstances especially since they are the highest authorities in the land. The idea that the federal justice system was the focus for ethics does make sense however, specifically since it is the highest court in the land. Rules and regulations are standards set for ethical behavior, and ensuring that attorneys know what is, and what is not, expected from them is of a high concern.

This paper will focus on the question of 'is there ever a time when an attorney can justify betraying a client's confidence' and the possible legal and ethical ramifications of doing so. During the literature review an effort will be made to present data on the various ethical situations faced by attorneys, and whether the attorney could or could not ethically justify a betrayal during those situations, whether the literature shows that those situations are confined to the federal, state or local jurisdictions will only matter in so far that the answer to the question is discovered.

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Ethical considerations will vary from federal to state to local levels and ethical interpretations will also vary according to the judge or attorney making the interpretation.

Different judges will certainly hold attorneys to standards that will vary from courtroom to courtroom. One study showed that making ethical decisions is not just the bailiwick of the attorney(s) it can also be based on a judge's interpretation of the situation as it is presented. Attorneys are oftentimes held to different standards in various courtrooms, and may necessarily be compelled to walk softly depending on the perception of the judge in a particular case or courtroom. The article determines that judge is master in his or her courtroom, and that perception 'is perhaps most prevalent in the arena of policing attorney behavior'. Different rules for different courtrooms can be the harbinger of trouble and confusion. According to the article, Federal judges may exercise discretion, simply allowing their gut to lead them (Basile, 2009). The problem is that leaves a lot of decision making up to the individual judge, and the resulting inconsistency can be detrimental to the attorney, the judge, the defendant and the entire system.

Comparing the available literature for this study can also lead to not only a comparison of situations at the various levels of American jurisprudence and different courtrooms in America, but other country's courtrooms can be included as well. One recent study concerned how attorneys in Russia cope with ethical situations.

The article describes the perceptions of Russian citizens concerning attorneys in Russian society. What the article portrays is that a majority of Russian citizens hold attorneys in high regard but are concerned with whether those attorneys are ethical.

The survey showed that most Russian citizens "declared that an attorney should be honest, just, principled, morally firm and disinterested" (Voyk, 2009, p. 81). The interesting part of this article is that there was a certain percentage of respondents who believe that the vast majority of attorneys practicing in Russia are corrupt.

The article states that respondents believed that "Russian attorneys today are venal, dishonest, unjust, grasping, and unprincipled, that they take bribes and violate or evade the law, or that they are dependent on the authorities" (Voyk, p. 80). If perception is reality, then the Russian legal system is a mixed review of whether attorneys exercise ethical judgment or if they do not. The ethical situations are most likely similar in other countries and other legal systems as well.

Many of the articles used to answer the research question for this study espoused the belief that "attorney ethics are of critical importance" (Salkin, 2008, p. 562). The article goes on to explain that there have been numerous examples of the conflict of interest by attorneys who are also city officials. The conflict of interest comes into play when these individuals are called upon in their official status to vote on 'land use' decisions. According to the article, oftentimes the attorneys represent entities (including themselves) that may stand to benefit from those votes.

Even the appearance of impropriety is addressed by the article and the fact that the application of ethics codes 'can have chilling effects on attorneys in private practice'. Certainly the appearance of impropriety will have certain effects on attorneys in private practice, as will situations based on the level of understanding of the clientele the attorney is dealing with. More sophisticated clientele will likely be much more in tune to the attorney's actions than would an individual with less sophistication.

The question remains on whether the attorney is going to react differently to situations where he or she may have a higher likelihood of being caught than if the situation was fraught with much less peril.

A recent study of such situations was conducted concerning how attorneys make ethical decisions based on the mental acuity of the client. The study sought to determine whether an attorney is more likely to lower his or her ethical standards or go against his or her ethical standards when faced with a person who is a mentally impaired decision maker. That is the question addressed by this particular piece of literature.….....

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