Code of Professional Responsibility and Lawyer’s Duty of Confidentiality

Charles M. Bennett (Attorney at Law, Blackburn & Stoll, LC) has recently published his article entitled Frontiers in Ethics: The Estate Lawyer’s Duty of Loyalty And Confidentiality to the Fiduciary Client: Examining the Past to Make Wise Choices Now and in the Future, 33 Ohio N.U. L. Rev. 807 (2007).

Here is an excerpt of the introduction to his article:

In 1977, the President of the American Bar Association, ABA President William B. Spann, Jr. established a special Commission on Evaluation of Professional Standards to review and revise the Model Code of Professional Responsibility (the “CPR”). President Spann chose Robert J. Kutak to lead the commission. In its 1980 Discussion Draft of its proposed Model Rules of Professional Conduct (the “MRPC”), the Kutak Commission, as it came to be called, proposed a number of changes to the CPR, the majority of which were acceptable to lawyers throughout the ABA and the country. Even so, several proposals caused a “firestorm of controversy,” leading Professor W. William Hodes to note: “the Discussion Draft was not so much discussed as it was assaulted.” One proposal exemplified, if not fueled, the “firestorm.” In its Discussion Draft of the MRPC, the Kutak Commission’s proposed to expand the circumstances where a lawyer could ethically disclose a client’s confidential information to third parties. Many lawyers viewed this proposal as a radical change to what were not only tried and true ethical principles, but to principles upon which the very foundation of the attorney-client relationship was built. ***

In conclusion, I have a few thoughts about what the future may hold for the lawyer’s duties of loyalty and confidentiality. Looking at the past gives insight to the future. Nonetheless, given the forces at work in the world at large and the every expanding wealth of knowledge and discovery, none of us should become too entrenched in our current views.