Wednesday, February 6, 2008
Evidence And Ethics 8: Professor Rothstein's "Anything You Say May Be Used Against You": A Proposed Seminar on the Lawyer's Duty to Warn of Confidentiality's Limits in Today's Post-Enron World
Georgetown University Law Professor Paul F. Rothstein's contribution to the Evidence and Ethics Symposium is, "Anything You Say May Be Used Against You": A Proposed Seminar on the Lawyer's Duty to Warn of Confidentiality's Limits in Today's Post-Enron World. The article is exactly what its title suggests: a comprehensive guide on how a seminar on confidentiality's limits could look.
In Part I, Rothstein begins by addressing the problem. He notes that while historically clients could be relatively confident that virtually anything that they told their attorney would be protected by the attorney-client privilege and the lawyer's ethical obligation of silence, modern developments such as the Sarbanes-Oxley Act and corresponding or even broader provisions in many state and model ethics rules, "the confidence that one's communications with a lwyer will remain sacrosanct today may be badly misplaced."
Part II notes that utility of the proposed seminar in light of the fact that there simply is not enough time to cover these issues in either an evidence class or most professional responsibility classes, and yet they rise with potentially great frequency in practice.
Part III then lays out Rothstein's vision of the course, which starts with students preparing "background reports" on issues ranging from sources of condidentiality to limits on confidentiality and concludes with a final unified report addressing issues such as whether existing warning requirements are sufficient. In between students would engage in other tasks such as conducting mock interviews and preparing "specific creative papers."
It seems clear to me that Rothstein's seminar fills a clear void in the curricula in most law schools, and such a seminar is certainly something I will consider proposing to my school in the future.