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Copyright (c) 1989 Iowa University
Iowa Law Review

ARTICLE: Rethinking Confidentiality

January, 1989

74 Iowa L. Rev. 351


Fred C. Zacharias *



A recent study in Tompkins County, New York, questioned laypersons and lawyers about the following attorney-client communication: 1

A client tells a lawyer the location of a "missing child" or kidnapping victim. The client is not implicated in the person's disappearance, but does not want the lawyer to disclose the information because the client "doesn't want to get involved." The client will not accept the lawyer's assurance that the lawyer could act without naming the client.

The prevailing New York confidentiality rule requires the hypothetical lawyer to remain silent. 2 Yet 72% of the lawyers responded that a "good attorney" would disclose the whereabouts of the kidnap victim. 3 Roughly 80% of the lay subjects stated that the lawyer should be allowed to disclose. 4 This Article presents the findings of the Tompkins County study and reconsiders attorney-client confidentiality in light of those findings. The Article provides substance to the notion that strict confidentiality rules go too far.

Virtually every American jurisdiction forbids attorneys to disclose client information. The professional codes vary in their edicts, ranging from nearly absolute prohibitions on attorney disclosures to general rules containing significant exceptions. 5 The rules stem from common assumptions about our legal system: clients won't confide in lawyers without confidentiality; lawyers need it to represent clients effectively.

Whatever its benefits, however, strict confidentiality also has adverse effects. Inflexibility in the rules has produced peculiarities in the law governing client secrets. 6 More important, the tradition of strict confidentiality has ...
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