Because of their professional obligation to keep a client's information confidential, a lawyer was prevented from:
A) Giving testimony in a murder trial that could free an innocent man.
B) Warning police about a bomb set to go off in a packed railway station.
C) Informing the plaintiff in a medical malpractice suit about a life-threatening aneurysm.
D) Telling the press that a specific cigarette manufacturer may have purchased irradiated tobacco.
The answer? E) All of the above.
Colonial Heights lawyer Neil Kuchinsky can tell you about it firsthand. He's the lawyer in choice D.
About five years ago, a former tobacco-company employee hired Kuchinsky because the employee wanted to go public with evidence that the tobacco manufacturer had allegedly purchased tobacco contaminated with radioactive residue for use in cigarettes. Later, however, the employee changed his or her mind out of fear of being blackballed from future jobs for being a whistleblower.
After learning of the situation, Kuchinsky felt a responsibility to warn the public, but knew that violating his client's confidentiality could result in the Virginia State Bar disciplining or disbarring him.
Last week, the New York Times Magazine published a letter in which Kuchinsky asked the publication's ethics columnist for advice. The ethicist concluded that under Virginia's legal code of ethics, Kuchinsky was powerless. He could use "all of his lawyerly cunning" to persuade his client to do the right thing, but if the client didn't want to release the information, Kuchinsky could do nothing about it.
Kuchinsky already knew the answer to question. He sought a ruling on the matter from the Virginia State Bar in 1994. The Bar opinion noted that as in most states, Virginia's code of ethics for lawyers only allows a break in client confidentiality in a few limited circumstances. Those include if a client tells the lawyer he or she intends to commit a future crime or if the client tells the lawyer they testified falsely in court.
Kuchinsky's client said he/she learned about the irradiated tobacco inadvertently and had no complicity in it. And state law does not require someone with knowledge of illegal acts committed by a third party to report those crimes. So asking Kuchinsky to remain quiet was a perfectly legal request on the part of the client.
But Kuchinsky believes that for the legal profession to hold the abstract concept of client confidentiality higher than public health and safety is the height of insanity. He believes strongly that the standards for confidentiality should be changed.
"I think it's outrageous to be gagged in these circumstances," he says. "I think there needs to be a shift in the value system." Kuchinsky decries "professional arrogance that exists in the legal profession ... that makes us think we're godlike in our importance to the extent that in almost all circumstances, our privileges are more important than the public health."
James McCauley of the Virginia State Bar's Ethics Counsel acknowledges that Kuchinsky is in a "difficult" situation. Because of cases such as the ones described above, there is currently a national debate in the legal profession about allowing lawyers to violate client confidentiality when they possess knowledge that could prevent physical harm or loss of life.
McCauley thinks the Bar should reexamine its confidentiality rules to determine whether exceptions should be granted in unusual cases such as Kuchinsky's.
But he also says the matter needs to be considered carefully, because client confidentiality is one of the tenets of the legal system. "Nothing's more important than the client's need to trust a lawyer to protect their deep, dark, ugly secrets," he says. "That's so fundamental to the profession, I can understand why the profession is reluctant to change the rules."
The New York Times Magazine ethicist concurs in his response to Kuchinsky: "It is only because of the guarantee of confidentiality that you learned about the contaminated tobacco ... [and] it is only by maintaining this guarantee that other lawyers will learn about future transgressions."
Since Kuchinsky's letter ran in the magazine last week, he's been contacted by Mike Wallace's office at "60 Minutes." So far, his client still won't talk, but Kuchinsky isn't as troubled by it as he once was.
"Actually, as far as I'm concerned, without making it public, by phrasing it in terms of an ethical question, I've done what I set out to do," he says. "Now it's up to others to do what they need to
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