From the schoolyard "tattletale" to the police officer's "confidential informant" to the Pentagon "whistle blower," our society is deeply ambivalent toward those who report the wrongdoing of others to the authorities. On the one hand, society values informers. Without informers, serious misbehavior would certainly escape correction. The police officers' code of silence with respect to fellow officers' crimes, for example, may be a major obstacle to eliminating police corruption and brutality. On the other hand, society scorns informers as betrayers of confidence. Even one who violates an antisocial pact such as the police officers' code of silence is viewed as having breached a trust. Such breaches leave all of us less secure in our reliance on the confidence of others.
Lawyers, one would think, would be among the last to make a virtue of informing. At the center of their professional code of conduct is a special obligation of confidentiality that is honored even at the cost of serious suffering and injustice. Although this strong obligation applies only within the limited area of client "confidences" and "secrets," the heroes of the legal profession tend to be those who keep secrets faithfully rather than those who blow the whistle on wrongdoers. The ethos of the legal profession is not one that emphasizes the importance of uncovering the truth at the expense of other social values. Nevertheless, the codes of professional conduct have uniformly required lawyers to report the misconduct of fellow lawyers to the appropriate disciplinary bodies.
This obligation is extraordinary. Generally speaking, citizens are not placed under a duty to report crimes that have come to their attention. It might be argued that this dispensation is part of a rough compromise by which society resolves its ambivalence toward informers: although citizens must, however reluctantly, come forward and give truthful information when summoned by the courts, they generally are not under any duty to volunteer information. Clear exceptions to this generalization are rare, but we are sufficiently uncomfortable with its implications that we sometimes pretend otherwise.
The purpose of this article is to explore the obligation placed upon lawyers to act as informers against other lawyers. First, the article will discuss the substance of the ethical reporting requirements and the extent to which the general ambivalence toward informing has blurred the contours of those obligations. Second, it will compare the obligation imposed upon lawyers with the obligations imposed upon other citizens in analogous situations. Finally, it will offer some conclusions about the appropriateness of the present ethical reporting requirements. The thesis of this article is that society's general ambivalence toward informing is rooted in moral values that deserve more respect than the codes of professional conduct have accorded them. The article will conclude by suggesting ways in which the rules governing lawyers' conduct can be brought into conformity with those values.
Gerard E. Lynch,
The Lawyer as Informer,
Duke L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2120