Associate Professor, School of Law, University
(NATIONAL) – Lawyers seem to be at the center of lot of
President Donald Trump’s personal lawyer, Michael Cohen,
whose office and hotel were raided by the FBI, is only the latest
example. Harvey Weinstein’s law
firm hired the private investigator who spied on Rose
one of his sexual assault accusers. A series
of lawyers were involved in the hiring of former spy
Steele, who produced the infamous Russian dossier.
Why does it seem that whenever something unravels in the news,
there’s a lawyer in the mix?
A cynical take might be that the legal profession attracts
willing to cut moral corners. Or that it’s more of an Anakin
Skywalker story, where the legal profession is so corrosive
it turns good people into jerks.
Based on my academic work, and as a lawyer myself, I actually
think there’s a different explanation, that has less to do with
the people and more to do with the laws governing secrecy.
I recently taught a course called legal secrets, where we
the rules governing all sorts of confidential matters, from trade
secrets to classified information.
The course revealed that every type of legal secret is
to misuse. The stronger the legal protection, the greater the
potential for misuse.
And attorney secrecy rules offer the strongest protection of
There are actually three different types of legal rules that
together to protect secrets entrusted to lawyers.
the law protects your secrets
First, there’s the attorney-client
privilege – declared
“dead” by the president after the Cohen raid –
which protects communications between lawyers and clients seeking
The concept of a “privilege” is similar to the way it
is used in everyday life – for example, warning your teenager
that having a cellphone is a “privilege.” It’s a
special perk not available to everyone. The attorney-client privilege
affords lawyers the freedom to withhold these communications from
disclosure in a legal proceeding like a trial.
It’s hard to convey how ridiculously valuable the privilege
is when you’re in the middle of a lawsuit. In civil cases,
procedural rules require both sides to disclose all information that
relevant. That can include information that is embarrassing
financially sensitive, or even a company’s trade secrets. But
legal communications with a client are exempt and don’t have to
be shared with the other side.
Secrecy related protections extend beyond just legal
ethics rules prohibit lawyers from disclosing any
relating to the representation of a client” without the
client’s consent. A lawyer that violates this ethical rule
risks losing her license to practice law.
This ethics rule is powerful because it adds credibility to
lawyer’s promise of secrecy. It’s what Nobel
prize-winning economist Thomas Schelling called a “commitment
strategy” – taking some action that makes it very
costly to renege on a promise or threat. In the same way that an army
a bridge to prove it won’t retreat, the threat of
disbarment serves to persuade clients that lawyers will keep secrets
Attorneys have a third secrecy shield at their disposal rather
clunkily called the “attorney
work product doctrine.”
This principle shields written materials prepared by a lawyer
connection with litigation, although it is not absolute. The doctrine
is also used to justify a
rule that shields a lawyer’s communications with outside
“experts,” as long the expert is not slated to testify in
This trifecta of secrecy-related protections makes lawyers the
transportation equivalent of an armored car with tinted windows. It
is intended to convey and provide security for its occupants when
they are at their most vulnerable (assuming, of course, they can
At its best and most iconic, attorney secrecy protections are
cherished part of our justice system. They represent the difference
between an innocent criminal defendant who provides a vindicating
piece of evidence to her lawyer and one too worried to reveal it.
But armored cars are also valuable to those who would misuse
to avoid scrutiny or accountability. Cigarette companies discussed
the toxicity of tobacco smoke in
emails inappropriately labeled as “privileged” or
“work product” in hopes that they would later be shielded
from discovery in litigation. Likewise, people like Harvey Weinstein
have an incentive to use lawyers to hire outside investigators in
hopes that the lawyer’s status as intermediary will shield the
arrangement from view.
That is why there are a few limited exceptions to the rules
regarding attorney secrecy, including what is known as the
“crime-fraud exception.” In other words, all of the
away when a lawyer’s services are used to perpetuate a
crime or fraud.
Lawyers are expected to serve as zealous advocates for their
clients, but they also have
broader duties to maintain the integrity of the justice
powerful client who goes too far may discover, perhaps too late, that
the keys to the privilege can be taken away.
Tippett, Faculty Co-Director for the Master’s Program in
Conflict and Dispute Resolution at the University
writes about ethics, employment law, and the intersection of law and
She is co-author of the Fifth Edition of the West
Academic textbook, Employment Discrimination &
The Field as Practiced, along with Samuel Estreicher
Michael Harper. Her research on disparate impact litigation was cited
by the United States Court of Appeals and the Iowa Supreme Court.
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