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Washington Lawyer

Legal Spectator: Keeping Secrets

From Washington Lawyer, March 2001

By Jacob A. Stein

spectatorWhom a statesman trusts at all he should trust largely, not to say unboundedly; and he should avow his trust to the world. In nine cases out of ten of betrayed confidence in affairs of State, vanity is the traitor. When a man comes into possession of some chance secrets now and then-some one or two-he is tempted to parade them to this friend. But when he is known to be trusted with all manner of secrets, his vanity is interested, not to show them, but to show that he can keep them. And his fidelity of heart is also better secured.
— Sir Henry Taylor

Sir Henry makes two points. The first point is obvious. It is the vanity of being known to be trusted with a secret that impels me to disclose it. I prove I am someone of importance by disclosing the secret that someone of established importance has entrusted to me.

Sir Henry’s second point is not so obvious. He explains how vanity is used to keep a secret. In order to preserve my reputation as one who can keep a secret, I must not give secrets away. Vanity overcomes vanity.

There is a pleasure in remaining silent when others speak with authority concerning things they don’t know about and that I do know about because of secret information. It is the pleasure of certainty held in reserve. It is Prana pleasure. Prana is the vital energy that the yogi masters say rises or falls in accordance with our doing right or doing wrong. The stronger the impulse to tell a secret, the greater the victory in remaining silent and the better the Prana.

Social beings, as we are, need secrets. We protect ourselves against our enemies with our secrets. Battle plans are highly secret. In World War II the United States broke the Japanese code and Great Britain broke the German code. Winston Churchill said this secret was so valuable that it must be protected by a bodyguard of lies. Secrecy for some is a full-time occupation. Secrecy is in our genes.

Lawyers have a professional obligation to keep secret what their clients tell them. When we become members of the bar, we join an exclusive group that has access to other people’s secrets. We are in the know.

A lawyer with a good secret is a natural target for a journalist. It is the lawyer’s obligation to keep the secret, and it is the journalist’s obligation to discover the secret. The journalist relies on flattery to get things moving. The journalist puts in a call to the lawyer. He says he values the lawyer’s opinion, the lawyer has a fine reputation, the lawyer is thought to be more competent than other lawyers.

When flattery of this type is administered, the lawyer has no desire to conclude the conversation. Good manners require the lawyer to give something in return for all this flattery. He hints at what he knows. He speaks without attribution, off the record, don’t mention me, I will deny it. As the lawyer continues to talk, he hears the clicking of the journalist’s computer keyboard.

There is an assumption that skill in keeping secrets comes with the reading of the Rules of Professional Conduct and the cases concerning the attorney–client privilege. Not necessarily so. There are those who are good at keeping client secrets, and there are those who are not so good.

Let me describe a lawyer who was good at keeping secrets. I first met him when he was winding down a long active career. He had access to the secrets of many people. He had the reputation Sir Henry described, the reputation for keeping secrets. As you might expect, he was a good listener. He did not hint that he knew more than he was permitted to say. He did not assert opinions based on secret knowledge. He told no anecdotes involving his representation of well-known people. His conversation invited what others knew rather than what he knew. For him it was a matter of personal honor to keep secrets, over and above any professional obligation.

The attorney–client privilege commenced long ago in England. It was the barrister’s personal honor that was at issue. He would be dishonored if he revealed anything the client told him. Even the client could not order him to reveal what was said. Over time the English judges narrowed the privilege and changed it around to protect the client and not the honor of the lawyer.

In its present form the privilege is sterile. It gives protection only if the client seeks legal advice. People in real trouble need more than strictly legal advice. They need someone to hear them out, in private, with the comfort that what is said will never be revealed. The religious privilege gives this. I hope that some day attorney–client privilege is given the same breadth.

Both privileges require that the parties intend that what is said is to be secret. Both require the secrecy to be absolute. The difference is that the religious privilege provides a protected setting of compassion that an experienced lawyer is well suited to administer. The right lawyer has been known to prevent a suicide attempt, especially if she can suggest that the statute may have run.

Here I quote Wigmore on the religious privilege: "Even assuming that confessions of legal misdeeds continued to be made, the gain would be merely the parties’ own confession. This species of evidence . . . ought in no system of law be relied on as a chief material object of proof."

The alternative to what I propose would be for lawyers to add a doctorate in divinity to their doctorate in law. A friend of mine, an active local trial lawyer, had both qualifications, theological and legal. She need not worry about the technicalities of the attorney–client privilege. She gave solace as needed. What was not covered by the attorney–client privilege was picked up by the religious privilege. The many who unburdened themselves to her were assured that nothing that was said would be revealed. No time. Not ever. Absolutely never.

One of the reasons lawyers do not keep secrets is the damnable need to advertise for new business. This mitigating circumstance should be weighed against such vulgar indiscretions as client name-dropping and hints at secrets that if revealed would change the course of history.

Jacob A. Stein may be reached by e-mail at jstein@steinmitchell.com.