Witness to history? Keep it to yourself.
Just think of all the historically significant information many lawyers have in their files.
Lawyers, just like journalists, often are the first witnesses to history. Their files might include original letters, notes, telephone messages, audio and video recordings, photographs and who knows what else from the participants in history-making legal and political matters.
I can imagine historians swooning over the thought of such a treasure trove.
Consider this scenario, posited by a 2001 law-review article:
On November 22, 1963, President John F. Kennedy was assassinated in Dallas, Texas. That evening, the government arrested Lee Harvey Oswald and charged him with the assassination. Two days later, on November 24, 1963, Jack Ruby shot and killed Oswald. Since that weekend, conspiracy theorists have speculated that Oswald may have acted in concert with others. What if, during the two days between his arrest and murder, Oswald had spoken with an attorney? What if he had told that attorney what really happened? What if he had told the attorney the name of the assassin and provided proof, but told the attorney not to reveal this information because he feared what could happen to his family?
Note, “Attorney Papers, History and Confidentiality: A Proposed Amendment to Model Rule 1.6,” Fordham Law Review (May 2001) (internal footnotes omitted.)
Continuing the law-review article’s scenario, what if the attorney had transcribed notes or recordings of Oswald?
Wow, wouldn’t opening the lawyer’s file be great?
Yes, but it doesn’t matter whether your client was Lee Harvey Oswald or someone who is significant only to his or her mother. Our Rules of Professional Conduct apply across the board and make no exception – absolutely none -- for lawyers to unilaterally decide to disclose the client files of the Oswalds of the world. (I think I now hear those historians hyperventilating.)
It’s an ER 1.6 issue. I’ve talked about this before. (See “What Did You Talk About at the Dinner Table Last Night?”)
No matter whether the information is truly secret (such as Oswald hypothetically telling his lawyer information) or not secret-secret -- what you wrote in a filed-and-open-to-the-public pleading -- the question is whether you, as the lawyer, are allowed to disclose the “information relating to the representation of a client."
In general, here are the circumstances under which you may disclose “information relating to the representation of a client”:
- Your client has given you informed consent to do so;
- You reasonably believe disclosing information furthers the representation; or
- You may or must disclose client information. This last category does not include any version of “because the client information has potential historical significance.”
But Oswald is dead. Doesn’t that make it OK to disclose?
No, because confidentiality obligations continue after the client’s death.
That 2001 law-review noted that many lawyers have donated their client files to historical repositories:
Harvard University houses the files of several prominent retired or deceased attorneys, including Louis Brandeis, Zechariah Chafee, Jr., Felix Frankfurter, Manley O'Hudson, Roscoe Pound, Thomas Reed Powell and Oliver Wendell Holmes. At least some of these files are open for research. For example, Learned Hand's papers were donated “with the stipulation that they be prepared for research as soon as possible.” The Library of Congress also has the papers of several attorneys whose files are available for research purposes.
Those old guys get a pass, because the rules were different long ago. But I cringed when I read this paragraph:
When attorneys donate their files to historical repositories such as Harvard or the Library of Congress, they often do not address the duty of confidentiality. Before 1987, even the Library of Congress never addressed this issue. In that year, Joseph Rauh, Jr., an attorney who had been involved in the labor and civil rights movements and had represented Arthur Miller before the House Un-American Activities Committee, donated his files to the Library of Congress. Rauh inquired about client confidentiality considerations and was surprised to learn that the Library had never before dealt with the issue. After some discussion, Rauh and the Library eventually decided that researchers would be able to look through the files. They agreed that if an historian or journalist wished to publish information about living clients or those with active estates, she must obtain the consent of the former clients or the former clients' executors. An historian, however, is free to publish any information from the files of deceased clients without active estates.
In essence, the lawyer subcontracted his ethical obligation of confidentiality to the Library of Congress and then to unknown historians and journalists. Don’t do that.
The Professional Ethics Commission of the Maine Bar of Overseers (an entity somewhat comparable to the State Bar of Arizona) recently issued an ethics opinion driving home the point that attorney-confidentiality obligations “may well restrict information that may have independent historical value. However, those values, though significant, do not trump the attorney’s obligation to keep the client’s confidences and secrets confidential.” It then cited the handful of other jurisdictions’ ethics opinions that reached the same conclusion.
Lawyers have sometimes confused disclosing client files with procedures for preserving court files. Arizona has procedures for designating and transferring “historically significant or landmark” court cases from the originating court to the State Library, Archives and Public Records. The list of Maricopa County cases that have been designated “landmark, renowned and historically significant” is fascinating, and includes the Ernesto Miranda (ultimately resulting in the famous Miranda v. Arizona opinion) and Winnie Ruth Judd prosecutions as well as a far more recent raft of Arpaio-related cases.
Preserving high-profile and significant public court files in perpetuity and for history’s sake, however, is far different from allowing the public – that includes you historians! – to sift through an attorney’s confidential client files.
If your clients give informed consent, that’s one thing. But you don’t have unilateral authority to make that decision for them, no matter how historically significant their case might have been.