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Univ. of South Carolina School of Law

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Monday, November 7, 2011

Confidence Testing: The Good Wife Episodes Raises Two Interesting Questions About Duty Of Confidentiality

Last night's episode of "The Good Wife," "Executive Order 13224" was probably the best of the season. It had an interesting A story (client-of-the-week): Alicia and company represent a former translator for a military contractor in Afghanistan who is suing the federal government for false imprisonment and torture. It also had a solid B story: Peter uses smarm-king Cary to go after Will under the guise of taking down the firm's Stringer Bell-ish client, Lamond Bishop. 

The show deftly unpacked the concept of the deposition dump for viewers (and no doubt caused night terrors for any viewers who have ever done document review). There was a delciously awful sexual harassment industrial video that capped the episode. There was the return of Elsbeth Tascioni, possibly the funniest lawyer in TV history, played with scatterbrained verve by Carrie Preston ("True Blood"). And, best of all, there was no dancing tutor.

What the show did have, though, were two situations in which there were alleged exceptions to an attorney's duty of confidentiality. What were they?

The first can be found in the episode's title: Executive Order 13224. Under the Order:

All U.S. individuals and businesses are prohibited from engaging in any kind of transaction with persons, groups or entities designated as terrorists or as their supporters or associates. A list of "Specially Designated Nationals" (SDN's), consisting of "drug kingpins," terrorists and others considered a danger to the United States, is kept by the Treasury Department’s Office of Foreign Assets Control (OFAC). Known as the "OFAC List" or the "SDN List," it contains over 5,000 names and is updated often.  No individual or business in the U.S., or the foreign subsidiaries of U.S. companies, may conduct any kind of business with anyone on the OFAC list, and companies are expected to keep track of all changes. It can be found on the Treasury Department's website at www.treas.gov/offices/eotffc/ofac/sdn/index.html.

Former State's Attorney, now AUSA Glenn Childs levels charges against the translator/client and claims that Executive Order 13224 provides an exception to the duty of confidentiality. The firm designates Alicia as the attorney to deal with a Bob Balaban-ish Treasury Secretary played by, you guessed it, Bob Balaban. The firm erects a Chinese Wall around Alicia, but, to quote the great Tom Petty, "Even walls fall down." So, is Alicia obligated to disclose her client's confidences or face imprisonment and a fine? The answer in the episode is "no" because Tascioni deftly (and amusingly) creates a conflict of interest. But would Alicia have needed to answer without this conflict?

Illinois Rule of Professional Conduct 1.6(a) provides that

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) or required by paragraph (c).

That said, Illinois Rule of Professional Conduct 1.6(b)(6) provides that

A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:...

(6) to comply with other law or a court order.

Rule 1.6(b)(6) is presumably the Rule under which Alicia could have disclosed her client's confidences, with Executive Order 13224 being the "other law." Comment 13 to that Rule notes that

A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court’s order.

So, could Alicia have disclosed her client's confidences under Rule 1.6(b)(6)? Yes, but could is the key word. Rule 1.6(b)(6) merely provides that an attorney may disclose client confidences "to comply with other law or a court order," not that she must disclose such confidences. So, under the Illinois Rules of Professional Conduct, Alicia could have disclosed her client's confidences, and, under Executive Order 13224, she might have been required to disclose her client's confidences. But when must an attorney disclose a client's confidences under the Illinois Rules of Professional Conduct? An attorney only must disclose under Illinois Rule of Professional Conduct 1.6(c), which provides that

A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.

This leads into the second situation in last night's episode which dealt with an alleged exception to an attorney's duty of confidentiality. Cary brings to Will's attention an incident from 15 years ago in D.C. in which Will "borrowed" $45,000 from a client to pay off a gambling debt. Cary tries to use this "indiscretion" as leverage for Will to disclose the confidences of Lamond Bishop. Will claims that the firm represents the legitimate businesses of Bishop. Cary counters that these businesses are money laundering faces for Bishop's criminal enterprises and that confidentiality doesn't apply if Will knows Bishop is committing crimes.

Now, I'm not sure of the exact language used by Cary, and I'm not sure whether he was claiming that Bishop was using the firm's services to commit these crimes. But regardless, it is quite possible that some exceptions do apply. Under Rule 1.6(b)(1)-(3):

A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a crime in circumstances other than those specified in paragraph (c);

(2) to prevent the client from committing fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services....

So, do any of thee apply to Lamond Bishop? The answer seems to be "maybe," depending on the exact nature of Cary's allegations. But again, even if one of the above 3 exceptions apply, that merely means that Will can disclose Bishop's confidences, not that he must. It will be interesting to see how this plays out over the season.



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I am a South African academic (at the university of Kwa Zulu-Natal,PMB) with special interest in the law of evidence, and legal ethics. Our professional secrecy rules are very differnt from yours, and provide a lot of interesting areas for comparison. Thank you for your post - it was interesting. Once I have watched the episode, I will give you a South African take on the situation!
kind regards

Posted by: nicci whitear-nel | Nov 8, 2011 11:06:45 PM

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