• U.S.

The New Rules for Keeping Secrets

7 minute read
Adam Cohen

The Rev. Joseph Towle, a priest in the Bronx, N.Y., usually hears confessions, but recently he offered up a jaw-dropping one of his own. Thirteen years ago, a man named Jesus Fornes told Father Towle he had committed a murder, one for which two innocent men had been convicted. Towle disclosed last month that Fornes, now dead, was the killer, and urged that the men–who had served 13 years in prison–be freed.

Towle’s bombshell provoked outrage from two directions. To some, it was shocking that a Catholic priest would violate his calling by betraying a penitent. (Towle says Fornes’ statement wasn’t part of a formal religious confession.) To others, the shock was that a man of God kept silent while two innocent men languished behind bars for a crime they didn’t commit.

Time was when the confidential professions were reliably confidential. A lawyer kept your crimes and financial mischief to himself; a priest took your sins to the grave. Even nonprofessionals had codes of confidence: secretaries, clerks and anyone with access to Coke’s secret formula or Colonel Sanders’ 11 herbs and spices kept a lid on it.

But two sets of professionals who have built their power on centuries of keeping secrets–lawyers and priests–are revisiting that tradition, partly as a way to repair their reputations in a world grown less tolerant of the powerful taking advantage of the powerless. More specifically, they are also fending off the modern reality of lawsuits. The latest evidence: policy changes last week by two very different organizations, the American Bar Association and the Catholic Church.

The A.B.A. had zealously guarded the attorney-client privilege, arguing that confidentiality is necessary for lawyers to provide the best representation. Church doctrine has held that confession can lead to absolution from God–and confidentiality is needed for people to confess their worst deeds. But now each group, while defending the core of its privilege, has taken steps to let their practitioners talk a little more.

The A.B.A. House of Delegates, meeting in Chicago, voted 243 to 184 in favor of a new rule that would allow lawyers to disclose client secrets to prevent “reasonably certain death or substantial bodily harm.” The old rules already allowed lawyers to speak out when a client was imminently going to commit a crime. But the new policy lets lawyers speak out even when the potential for harm is not immediate and when the act is not criminal.

The change was prompted in part by the new scenarios lawyers are confronting daily. At one time, the great concern was a client’s running out of his lawyer’s office brandishing a gun. But today’s practitioners have to deal with HIV-positive clients who say they’re going to have sex with people and not tell them about their infection, or they may have corporate clients with plans to dump dangerous toxins. It is tempting to think the new rule is just an attempt by lawyers to protect themselves legally, but in fact they may be better off under the old rule: if you are prohibited from blowing the whistle, no one can blame you if you don’t. What the new rules offer lawyers is a moral opportunity to sound the alarm about clients bent on doing harm–and of course, an opportunity for good publicity.

Opponents of the reform argue that it distracts lawyers from their primary obligation: rigorously advocating the interests of their clients. But backers say the new policy will force lawyers to weigh their obligations to clients against their larger duty to society. Read between the lines, and you have an implicit acknowledgment that lawyers could do something to improve their image. “There’s been a recognition, particularly when there’s a danger to life and limb, that lawyers ought not to be legalistic,” says Nancy Moore, a Boston University professor of law who helped draft the proposed new rules.

At the same meeting, however, the A.B.A. balked at adopting a companion proposal that would have allowed disclosure of client secrets when the risk of harm is only financial. Under the rejected rule, a lawyer would have been able, for example, to rat on a client who was committing fraud. The measure’s critics argued that it would make the loophole too large and would too often put lawyers at odds with their clients. It could also, they warned, harm a client’s legal representation by leading the client to hide significant facts from his attorney.

In Boston the archdiocese was making an about-face of its own. The church announced last week that it was supporting a bill in the state legislature that would add priests and other clergy to a list of professionals, including teachers and social workers, who are legally required to report suspected child sex-abuse cases to the authorities.

The Boston church’s shift–it opposed the bill a week earlier–came amid a messy sexual-abuse scandal. Bernard Cardinal Law recently admitted, as part of a civil lawsuit against the church by abuse victims, that after he was informed that John Geoghan, a priest, had allegedly molested seven boys, he transferred Geoghan to several other Boston parishes. Geoghan, who retired in 1993 and was defrocked five years later, is accused of molesting at least 70 children. He has pleaded not guilty to the charges.

This kind of legal exposure and the press that comes with it have made it hard for the church to deal with sexual abuse by priests as an internal matter, as it once did. If the bill passes, Massachusetts would become the 12th state to require priests to report child sexual abuse. The church, like the A.B.A., loosened up only so far. The archdiocese would not back the bill until it was assured that priests would still be exempt from revealing anything–including sexual abuse–they learned in confession.

There is one big exception to the tendency to redefine what can remain confidential, and that is in the world of business, where trade secrets are increasingly perceived as precious commodities that need protection. The global economy relies more and more on companies that create and sell knowledge, but their employees are less inclined to keep the boss’s secrets, owing to either diminished loyalty or the high rewards for selling out. The FBI has put the cost of industrial espionage at more than $100 billion annually. Of the first 24 cases prosecuted under the Economic Espionage Act, 18 involved corporate insiders. The latest high-profile example: pink-slipped dotcommers who are often taking proprietary information with them on their way out the door.

Businesses are quicker than ever to cut off fired employees’ access to computer systems and more willing than ever to go to court. This year Silicon Valley celebrated a landmark prosecution in which, after four years, Avant Corp. and seven of its current and former executives were forced to pay $220 million in fines and restitution for stealing secrets from a rival tech firm. Avant got information by paying off an engineer from the targeted firm.

Of course, there was never a golden age in which all secrets were fiercely protected. (Think of Ambrose Bierce’s definition of “confidante” back in 1911: “One entrusted by A with the secrets of B, confided by him to C”.) Amid all the erosion of old protections, there are still, however, plenty of people playing by the old rules–or their own rules.

Last week, even as the A.B.A. and the Catholic Church were coming out in favor of looser lips, free-lance journalist Vanessa Leggett remained in prison in Texas for refusing to turn over her confidential reporting on an unsolved Houston society murder. Texas doesn’t have a “shield law,” as some states do, protecting journalists from court orders to hand over their notes, and her First Amendment arguments have so far been rejected. Leggett, who could be imprisoned for up to 18 months, is a powerful reminder that no matter what the rules, there’s still one sure way to keep a secret. Don’t talk.

–With reporting by Rebecca Winters/New York

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