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No more Lawyer-Client Privilege in New York?

Feb 12

Written by: Professional Academics Team
2/12/2010 12:11 AM 

 New York legislators are debating a bill that will capsize over 400 years of lawyer/client professional ethics and responsibility. According to a February 7, 2010 New York Times editorial opinion, even the New York City Bar is on board with this change in the ethical precept.   http://www.nytimes.com/2010/02/08/opinion/08mon4.html . This is quite an unsettling change in a long-standing precedent.

 
In 1577 the first evidentiary privilege recognized by the English common law was the attorney-client privilege. The English common law protected the confidential nature of attorney-client communications, regardless of whether those communications took place in public or in private. The American colonies adopted this approach to the attorney-client privilege, and Delaware codified the privilege in its first constitution in 1776.
 
 
This proposed break in the protection of client information would involve attorneys who later wish to run for public office. According to the editorial, the group proposing the idea, the New York City Bar Association, is not afraid to use the age-old method of looking to outside jurisdictions for informative rules. The City Bar Association cites California and Washington as other jurisdictions that require disclosure of client information by those in public office. 
 
The protective rule was solidified in a federal court ruling in 1950, U.S. v. United Shoe Machinery Corp., 89 F.Supp. 357 (D.Mass. 1950). In United Shoe, the court detailed a five-part test for attorney-client privilege. The most significant branch of this test is the mandate that the privilege may be waived ONLY by the client. According to the Model Rules of Professional Conduct, Rule 1.6, a “fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation.” http://www.abanet.org/cpr/mrpc/rule_1_6_comm.html
 
Despite the constant battles that legal professionals must fight over the integrity of their industry, one canon that most people understand, know about, and agree to, is that of the attorney-client privilege. No client should be made to feel tentative that their lawyer might someday move to and/or run for office in Washington, California or New York, and be forced to part with their once safeguarded legal secrets. It is painfully obvious that those who would abandon this rule, if only for elected officials, could use the prior client information as a political weapon against the former lawyer. Any argument FOR this rule is a thin veil over the haunting specter of the use of prior client information as political artillery. Although the individuals who propose this rule may hide behind the mantra that it is in the “public interest,” no public interest is better served than the whole of the people feeling secure and confident in their counsel, and in the legal system in general.
 
You can download and view the statement by the New York City Bar on this issue at the following link:
 

http://www.nycbar.org/pdf/report/uploads/20071850-ReformingNYSFinancialDisclosureRequirements.pdf

 

February 12, 2010
Jerry Linger, Esq. 
Dean of Legal Studies, Beckfield College
Jerry has practiced law since 1995 and has been in charge of legal programs at Beckfield since August 2005.

 

 

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