Attorney Mark Dubois ()
As GM continues to reel under the fallout over whether it hid or downplayed the seriousness of the problem with the ignition switches on some of its vehicles which had led to injury or death in some cases, attention is turning to its lawyers. After an investigation, a number of engineers, executives and legal professionals were fired. In some media, lawyers who were defending lawsuits involving the vehicles are being criticized for not revealing knowledge of the problem. Now that some of them may have been repaid for this effort be being thrown under the bus, it will be interesting to hear what comes out.
This evinces a tension that always exists for lawyers when they learn of a client’s possible misconduct and find themselves torn between revealing the problem, possibly saving lives or hiding it and preventing their client from being exposed to huge damage claims all while wondering what may either promote or end a legal career. Among those who teach legal ethics, this is known as the “flaming pajamas” problem, from a hypothetical where lawyers representing a clothing manufacturer allegedly suppress information concerning the propensity of their client’s product to expose unwitting children to serious harm. We are schooled to hold client information confidential, but are also warned that there may be a point when moral or public-interest issues overwhelm such a duty.
The rules by we govern themselves recognize the problem and allow prophylactic action. Rule 1.13 provides that when lawyers learn of misconduct within an organization, they may take remedial action in the best interests of the organization, including reporting to the highest internal authority and, on occasion, outside of the organization. My guess is that if someone had brought the ignition switch problem to GM CEO Mary Barra, things would have been handled much differently. Rule 1.6 actually mandates (other states simply allow) public disclosure when client conduct involves a criminal or fraudulent act likely to result in death or substantial bodily harm to a person. The first rule is designed to protect the client, the latter to protect the public.
Things get more complex when the problem appears to have been remedied. While the rules allow lawyers to take action to prevent harm, they generally do not allow us to go back and fix mistakes that have already occurred. The most troubling of these cases involve lawyers who know of a wrongful conviction but who cannot reveal it because doing so would implicate a client who has escaped detection. The harsh consequences of silence in these cases is that some innocents have spent a lifetime in prison for crimes they did not commit.
Though the rule seems to be amoral in its application, it has its roots in the concept that clients must be able to obtain sound legal advice, and a lawyer cannot properly advise and counsel if she does not know all the facts. Thus, clients must be able to trust that what they say to lawyers remains private. But even privacy has its limits. Sometimes things should not be hidden, especially when harm can follow.
Unfortunately, both internal and external whistle-blowing come with a cost, and many are not willing to risk their careers doing so. Some law professors suggest that an alternative to silence might be to attempt to convince the client to “do the right thing”. Others have suggested that lawyers finding themselves torn between these competing concerns consider anonymous reporting. That may explain why the information about GM’s internal investigation into the ignition switches seems to keep leaking out.
None of this is easy, and those of us who counsel lawyers about ethics problems often have to help choose between several unpleasant alternatives. A lawyer making an informed and reasonable decision to honor or breach a client’s confidentiality will often not be disciplined, as issues such as whether harm is imminent may not be readily apparent or may be subject to debate. The worst sin is when, faced with overwhelming evidence of imminent harm, nothing is done out of misplaced loyalty to the client.
As the GM drama plays out, it will be interesting to see what role lawyers had in hiding the problem. If nothing else, the matter will provide yet another interesting case study in lawyers’ ethics classes for many years to come.
Mark Dubois, the former chief disciplinary counsel in Connecticut, is now an attorney at the New London firm of Geraghty & Bonnano. He is also president-elect of the Connecticut Bar Association. The views expressed here are his own and not those of the CBA.