Since I did not have much else to do during the pandemic besides running, I started listening to podcasts for the first time a few years ago. I love listening to podcasts while I exercise, and I have a few primary ones I consult regularly, including Above the Law’s great “Thinking Like a Lawyer” podcast. I also listen to other true crime podcasts and other one-off productions on occasion.
Over the past several weeks, I listened to a podcast episode about a lawyer who potentially violated confidentiality rules to disclose details about a “#MeToo” case, and a podcast that included a judge possibly pushing ethical boundaries by discussing a criminal case. This got me thinking: should lawyers and judges ever violate legal ethics in order to serve the public good?
Legal ethics rules, and especially the rules about keeping information confidential, are themselves established to promote the public good. No matter what a client might be accused of, a client deserves diligent and effective representation. Clients can only be forthcoming with their counsel only if they are confident that lawyers will keep their confidences and that information told to lawyers will not be shared with third parties. In addition, confidentiality is often essential to ensure that criminal defendants receive a fair trial and that all stakeholders in the legal process are adequately protected.
As such, it can be difficult for individuals within the legal profession to accept that there are situations in which these ethical rules should be broken from both a professional and moral standpoint. Indeed, when I first heard about the stories of a lawyer and judge potentially breaching professional ethics to reveal confidential information, I reflexively thought that this was inexcusable conduct.
However, numerous times throughout history, people have shared confidential information in contravention of the law or professional standards in order to promote the pubic good. Perhaps the most famous example is when Daniel Ellsberg revealed highly sensitive information about the Vietnam War in a case that was eventually decided by the Supreme Court. More recently, Edward Snowden and other leakers have revealed information in order to shine a spotlight on issues that the American public might not know much about.
There is also a well-established history in America of disregarding the rules in order to achieve a just result notwithstanding the normal legal process. Indeed, jury nullification — when a jury refuses to find a defendant guilty of a crime based not merely on the law but on moral principles — has been around for decades. In some ways, the practice of disregarding ordinary rules can be a check on the system since this can eliminate barriers to promoting an important public good.
Accordingly, I cannot pass too much judgment on lawyers and judges who disregard ethical rules in certain circumstances. For one, ethical rules need to be disregarded to promote a very significant public good. Since the rules of legal ethics were established to promote a fair and effective system of justice, they can only be disregarded to promote some larger public good. In my opinion, shining light on the plight of someone who is likely wrongfully convicted of murder, which is the scenario in one of the podcasts I listened to, it is worth a possible breach of legal ethical rules. Wrongful convictions are one of the most grotesque miscarriages of justice, and great efforts should be taken to remedy this injustice.
However, when it comes to civil liability and run-of-the-mill bad practices of corporations, like in another podcast episode I listened to recently, the justification for breaching legal ethics might not be as significant. When no one’s life or liberty is currently at stake, there might not be sufficient justification to break the normal rules of legal ethics.
Moreover, individuals who leak confidential information or commit other breaches of legal ethics for the public good should be prepared to face the consequences. Unless grievance authorities are prepared to exercise discretion akin to jury nullification, breaches of ethical responsibilities will go through the normal ethics procedure no matter how compelling the public good promoted turns out to be. Since ethical rules serve an important purpose, and help promote the orderly disposition of legal matters, all ethical breaches should likely still be subject to the same grievance procedure as other violations of ethical standards.
All told, my sentiments are not too rigid to believe that all ethical breaches, including violations that were committed to serve the public good, are morally wrong and should not be undertaken in every circumstance. However, leakers need to be prepared to face the consequences even if they break ethical principles to serve the public good.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.
