Rule 1.6: Confidentiality of Information

“Except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed to make a disclosure that facilitates a satifactory conclusion to a matter.”

A strict interpretation of this, I suppose, would preclude an attorney from offering any information not necessary to ensuring that the client’s decision (be it plea or some kind of waiver) is accepted by way of an adequate canvass. Any additional information would be in violation of the rule.

People will still disagree on what’s appropriate and not, but there’s the relevant commentary, at least.

If my comments seemed to support Gerace, then I wasn’t clear. That was not my intent. I merely wished to raise a corollary issue – a discussion about how and when, if ever, it is appropriate to indicate to the court that your client has made a decision that is not consistent with your advice. There are a million different ways to handle the situation and to say it, and I was hoping for a meaningful dialogue about it. While I do not endorse Gerace’s particular comments for a number of reasons, I have seen many attorneys say something to that effect (albeit muted and more Gideon-esque) on the record.

I used an IAC claim as an example of an event in the future that would benefit from a good record. I am certainly not advocating that attorneys should put their own interests above those of their clients and/or take action detrimental to their clients. Quite frankly, I don’t think either of my posts imply that.

I understand the dilemma about not being permitted to divulge privledged communications, which is why this issue is especially intriguing and important. My posing the question – How does this hurt your client’s interests – was not so much in response to an ethical question about privileged communication, but to your comment that it puts the attorney’s interests above the client’s. Obviously, if it’s privileged information or otherwise harmful to your client’s case, then this would be true. But if it’s not?

This begs the question we’ve all danced around – does any statement to this effect violate the privilege and if so, how? Why is it okay to say I advised my client of the maximum penalty, and of the elements of the offense with which he is charged, and of the evidence against him, etc.? I submit it’s a gray area, and I’m interested in people’s theories on where to draw the line.

Finally, I resent your implication that I am unethical – you have no idea how I practice or what I’ve done in the past in a courtroom. I raised a question I thought was interesting in light of the fact that I’ve seen attorneys handle the situation in many different ways. I very much would like to have a discussion about the ethics of this issue without unnecessary and unjustified hostility.