Letters to the Editor
notes in his guest column, the American Bar Assn. is looking
again at ethics rules covering when lawyers can and whether
they should be required to report clients who commit financial
crimes to regulatory authorities ("Attorneys must be
willing to expose complicit clients," Oct. 7).
The ABA agrees lawyers have a responsibility to help fight
corporate crime – and many of our members agree that
having lawyers expose their clients is the most effective
way to accomplish that. But the other view, and the one that
prevailed the last time we looked at this question, is that
lawyers can be much more effective heading off client crimes
when clients trust them to protect secrets except in very
limited circumstances. Lawyers must counsel their clients
to adhere to the law and point out to their clients when proposed
conduct violates the law. But they can only do that if clients
are forthright about sharing their plans. Honoring the lawyer-client
privilege preserves the trust clients need to be open in consulting
In the corporate setting, the client is the organization,
not any single individual. But individuals, acting as corporate
agents, hire lawyers. When those agents or other corporate
officers share illegal schemes, lawyers have another option
besides urging a different course. They can and do report
up the corporate chain of command, urging a law-abiding policy.
But sometimes when lawyers and corporate agents differ over
proposed conduct, it is a close call as to whether the decision
is a legal one or one of corporate strategy. Unless the law
is clear, and the conduct clearly would violate the law, the
lawyer can only advise.
As I said at the outset, we are reconsidering these issues.
In fact, our Task Force on Corporate Responsibility has been
hard at work on issues regarding the lawyer's role and responsibility
in corporate actions since long before Sarbanes-Oxley Act
assumed center stage.
- Alfred P. Carlton Jr.PresidentAmerican Bar Assn.Chicago