Abuse of Confidentiality and Fabricated Controversy: Two Proposals

Abstract

Public faith in the legal profession is not merely low but is declining at a disturbing rate. During the past decade the percentage of people willing to rate lawyers' honesty and standards as or very high has dropped from 22% to 13% (according to Gallup). This is an average decline of nearly 1% per year. While polls may not be perfect reflections of public sentiment, it seems safe to say that, in terms of our reputation for ethics and honesty, the past 10 years have not exactly been a decade of progress. If the Canons were right, it may be peculiarly essential to the long-term stability of our American form of government that the public can trust the lawyers who steward its laws and its justice. As long as people do not trust the integrity of the lawyers who administer the legal system, they will never find it easy to trust the system as a whole, and the distrust of lawyers runs deep. The documented public cynicism about lawyer ethics and trustworthiness is, moreover, a valuable measure of how well the profession is performing its responsibilities of self-regulation. It is doubtful that our poor professional reputation for honesty and standards could be so persistent without some genuine foundation in the ways lawyers behave. Ironically, however, most lawyers seem rather scrupulous to observe what they believe to be the profession's standards. Accordingly, it may well be that there is something wrong in the standards themselves, soomething which leads lawyers to act in ways the public finds repugnant. This article considers the hypothesis that the public's negative view of lawyers is tied directly to two related forms of advocacy, both seemingly rooted in the Model Rules of Professional Conduct. They are designated here, respectively, as (1) fabrication of controversy, or pretending disagreement in order to gain some non-deserved legal advantage, and (2) abuse of confidentiality, the deliberate effort to foster false inferences through partial disclosures and half-truths. Both of these lawyering techniques are stoutly defended (albeit under different names) by many in the bar, and are perhaps even regarded as crucial aspects of the adversary system. At the same, however, neither would likely be recognized as genuinely or ethical as those conceptions are generally understood in ordinary, non-lawyer contexts. Worse than that, both are readily perceivable as detracting from the legal system's ability to achieve the gold standard of justice and of the rule of law, namely, the substance of the law applied to the events that actually occur. Nonetheless, both of these forms of advocacy behavior are reinforced and propagated by a fair reading of the current Model Rules. The bulk of the article is framed as a discussion of two proposals that would modify the Model Rules to eliminate these marginally honest practices?first, by declaring fabricated controversy to be out of bounds and, secondly, by expressly forbidding abuse of confidentiality in an effort to undercut the law's search for truth.