Samuel C. Stretton.

Bringing back professionalism in the practice of law is key.

I am a young lawyer, but in my practice, it seems that many lawyers are intolerant and willing to amplify past transgressions by members of the bar even though they occurred a long time ago. What is happening to the profession of law?

Unfortunately, the legal profession to some extent mirrors modern society. Modern society has become very intolerant in recent years. Ask anyone who has ever had a criminal conviction and then changed and reformed how they are treated when they attempt to get a job.

This writer, in representing lawyers over the last 45 years, used to help suspended to disbarred lawyers get jobs either as paralegals or in retail or stocking shelves in supermarkets, etc. For many lawyers who are suspended or disbarred, it's impossible to get those jobs now because no one will hire them. Supermarkets often will not hire a lawyer who has been suspended or disbarred. The public perhaps periodically talks about second chances, but rarely gives people second chances or, if they do, will constantly remind them of their past discretions. The internet compounds everything since it never seems to forget anything. Lawyers this writer has represented who have been reinstated even years and years ago from disbarment or suspension and have done wonderful work since still have to have their name blemished by their past disbarment when someone types their name in the computer. Usually what comes up about someone is the bad thing first, i.e., they were disbarred or suspended.

What is particularly upsetting is the modern practice of researching one's legal opponent. Many lawyers when they file briefs or motions will search the background of the opposing counsel. If the opposing counsel ever had professional discipline or some criminal conviction or any sort of problem or difficulty in the past, that is highlighted and repeated in argument and briefs and motions. This writer has seen lawyers from very respectable firms write damning letters to lawyers about their past transgressions even though it has nothing to do with the representation or case. That kind of conduct did not occur in the past.

In the past, people were more forgiving and accepted change and reform. If a lawyer was reinstated and was doing well in his practice, people were glad to see that and encouraged the effort. Now, the opposite is true and people want to emphasize the negative and highlight any past misconduct. In the past, the judiciary would not tolerate those kinds of personal slurs and attacks on opposing counsel, but many times the judiciary seems to turn the other way or ignore this bad behavior.

All lawyers ought to review the Pennsylvania Rules of Civility. Although these rules do not have disciplinary consequences, they set forth the aspirations all lawyers should achieve in the legal profession. Perhaps lawyers have to understand what it means to be a professional. To have the privilege of being admitted to practice law in a state is a wonderful opportunity. The lawyer being admitted becomes part of the legal profession which has a long and historic presence. The legal profession can take great credit for the evolving law and for the democratic institutions which populate this country. Lawyers through vigorous advocacy and through much involvement in the community and in the political offices have help to create a society by law where fairness and justice are the ideals. Once admitted to practice, each and every lawyer becomes part of this wonderful profession and has a duty to uphold the ideals not only in terms of representing clients as vigorously and as honestly as they can, but also in terms of insuring involvement in the community and in society. Each generation of lawyers help to reinterpret the constitution and make it a living document to adjust to the modern problems of every generation. It is a wonderful and great honor to be part of this profession and perhaps one of the greatest privileges any lawyer can have. This privilege allows a lawyer to participate fully in the third branch of public. This privilege allows a lawyer to become part of the public life of their community and of the country in terms of representation and in terms of legal and judicial changes.

Therefore, it is very sad to see a profession turn and lawyers turn on each other and the intolerance that sometimes prevails and the lack of forgiveness and understanding. Perhaps the recent U.S. Supreme Court confirmation hearings are a classic example of the inability of society to forgive and respect changes. What someone might have done in high school 36 years ago, which was never reported or raised until 36 years later, should be viewed in a broader context. Whether or not the U.S. Supreme Court nominee is wanted or not wanted by any particular segment of society, there is no question even if he committed high school misconduct that he has changed and reformed. Why can't society accept change and reform and why are people being destroyed for past misconduct that occurred many, many years ago and which is extremely difficult to defend because of the long passage of time. There can never be any hope in a society that always wants to bring former past discretions from years ago without in any way crediting many times massive and amazing changes and reform.

The problem is that practice of law works best as a profession, but the practice is becoming not a profession but a business. The business of the practice of law is now dominating and the professional side is slowly losing its luster. That is unfortunate. If this trend continues the special and privileged role of a lawyer will be lost and the practice of law become yet another agency licensed by state governments or the federal government without the storied independence needed for the profession by and through the regulation by the courts and not the Executive Branch.

Therefore, to answer the question, what is happening is the legal profession is changing. It's up to lawyers to bring it back to its professional status. To do that, there has to be civility, a sense of history, and a sense of the importance of the profession. The economic side has to be downplayed. This can only be done by direction through the bar association, individual lawyers and also through enlightened judges, particularly at the Pennsylvania Supreme Court level. Though professionalism is the ideal, little has occurred to further that ideal in recent times. Yes, intolerance does exist and it's a byproduct of society, but also a byproduct of a once great profession that is losing its historical bearings and its purpose.

The lawyer's duty is primarily to his client and that duty to the client has to be respected.

I am a lawyer and have discovered my client has not been totally forthcoming on issues. I do not believe the client's conduct rises to the level of criminal activity. Can I disclose the conduct to prevent an injustice?

In evaluating a lawyer's obligations to a client, the Rules of Professional Conduct have to be clearly noted and studied. But a very basic rule is a lawyer's primary obligation is to their client and to the confidences given to the lawyer by the client.

The starting point is the Rule of Confidentiality, Rule 1.6 of the Rules of Professional Conduct. There are two sections there, Rule 1.6(b) that states a lawyer can reveal information, if necessary, to comply with the duties stated in Rule 3.3 of the Rules of Professional Conduct. Rule 3.3 is titled, “Candor to a Tribunal.” It requires false statements made to a tribunal by a client or by a lawyer to be corrected. Evidence that is false has to be corrected.

Rule 1.6(c) allows a lawyer the option to reveal certain information which would normally be privileged. For instance, to prevent death or serious bodily injury. Under Rule 1.6(c)(2), to prevent a client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interest or property of another. Rule 1.6(d) allows a lawyer to prevent or mitigate or rectify consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services were being or had been used, except where a lawyer can optionally reveal information. But Rules 1.6(b)(2) & (3) are the rules at issue.

The problem with Rule 1.6(c)(2) is it speaks about committing a criminal act before a lawyer can reveal information that might cause substantial injury to the financial interest or property of another. The other situation involves where a lawyer's services have been used by a client to commit criminal or fraudulent acts.

What happens in a situation where there is not a criminal act, but the lawyer knows the client has not been forthcoming?

There is an older opinion by the Pennsylvania Bar Association, Opinion #97-78. In that case, a client had obtained letters from a client's employer. The client had a case against his employer with the Human Relations Commission. The client had “inadvertently” gotten letters from the employer. The lawyer wanted to know if he or she could reveal that information that the client had obtained from these letters. The committee held that the lawyer could not reveal the information since there was no criminal or fraudulent act.

An opposite situation would be, for instance, a lawyer representing a client in bankruptcy when the client doesn't disclose an asset to the trustee. A lawyer would be able to disclose that because that would be a fraudulent act of the client for which the lawyer's services were purportedly being used under Rule 1.6(c)(3).

The point is that lawyers have to be very careful about making disclosures and carefully review the law and rules. The fact that morally it might be right for the lawyer to disclose does not necessarily give the lawyer the ability to break the attorney-client privilege. This is a very important area because if a lawyer makes a mistake and breaks the attorney-client privilege and reveals confidential information, that could have a severe impact on not only the client but also on the lawyer's law license. The Rule of Confidentiality is one of the most important aspects of being a lawyer and the Rules of Professional Conduct enforce confidentiality. Intentionally breaking confidentiality could result in substantial discipline, depending on the circumstances.

But, the bottom line is before a lawyer discloses confidential information with the good intention of rectifying what the lawyer considers a wrong, the lawyer should carefully review the exceptions under Rule 1.6(c) and 1.6(b) and see if a lawyer's disclosures fit with any of the exceptions. The most important concept to be taken from this article is that the lawyer's duty is primarily to his client and that duty to the client has to be respected unless there are criminal or fraudulent acts occurring.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.