Lawyers are forbidden by the ethics rules of their profession in every state from divulging the secrets of their clients, their former clients, or even their dead former clients, except in the rare circumstances when doing so will save a life or prevent a crime, and often not even then. Client confidences include all information a lawyer learns about a client in the course of the representation whether or not it is germane to the representation or not, if the client would be embarrassed by the information or would want it to remain secret.
The duty to maintain client confidences goes to the core of the professional relationship between citizens and their lawyers, and any attorney who breaches it not only harms his or her client but undermines trust in the entire profession as well. So sacrosanct is the duty that a Massachusetts court agreed with the Fall River law firm that represented Lizzy Borden in her famous murder trial, when Lizzy’s heirs tried to force it to reveal whether she did, in fact, “give her mother forty whacks” (and her father forty-one) with an ax, that it could not reveal Borden’s secrets even in the interests of history. The firm, said the court, was quite correct: Miss Borden hired it based on its lawyers’ assurances that her secrets were safe with the firm forever, and to allow otherwise now, even a century after the crime, would betray her trust and undermine the profession’s integrity. The Massachusetts Bar agrees.
So how can it be that Henry Bushkin, for decades the late Johnny Carson’s personal lawyer and thus charged with keeping the secrets of the famously reticent comic’s personal life, is now publishing a tell-all book filled with juicy stories about his conveniently dead client?
Bushkin just doesn’t care about any of that honor, trust and duty stuff, apparently. He wants to cash in, so he’s violating his professional duty as well as his loyalty to a man who once described him as his best friend, at a time in his career when professional sanctions hold no terrors for him. Besides, although the duty of a California lawyer to keep client confidences is bolstered by statute, it is unlikely that in a state containing Hollywood, where back-stabbing and post mortem reputation-wrecking is a tradition, the bar’s ethics watchdogs would bother to pursue disciplinary measures against a lawyer like Bushkin, who is apparently willing and able to give up his law license in exchange for filthy lucre. Maybe he thinks he has some loophole to exploit that would allow him to make money by publishing such a book. Maybe he thinks he can make a successful First Amendment claim if California tries to punish him. He might be right: maybe he can get away with the betrayal of trust, and maybe he could successfully argue that it shouldn’t be disciplined for it. That’s all irrelevant. What he is doing is despicable and unethical. Is it officially unethical? I don’t think that would matter to Johnny, do you?
As if greed weren’t enough, there is also an element of revenge in Bushkin’s despicable betrayal. Carson fired his lawyer and “best friend” after alleging that Bushkin stole millions from him.
We can only hope that the book flops, and that no fans of Johnny will willingly put money into the hands of the unethical lawyer who betrayed him.
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Sources: Showbiz 411, NY Times, LA Bar, ABA
Graphic: Johnny Carson 360
Ethics Alarms 
Therrrrrrrre’s a book I’m not gonna read, or discuss with anyone.
Call me a “censor.” Yes, I am. Proud of it, too. Love ya, Johnny!
Eeyoure, you’re not a censor, because nothing you’re doing (or will be doing), would actively prevent a person so inclined from reading this slimy book. But, if you urge others not to read it, you’d be doing good work, at least in my estimation.
Well, I cannot tell much from the link, but I am not sure this crosses the line. They mention a conversation that appears to have occurred in the presence of a third party. No privilege there. I don’t know if the fact that Carson cried (or carried a gun) constitute confidential information, as I am not sure it casts him in any sort of negative light. So, is Bushkin being “unethical” (from a professional stand-point? I am not sure. Unseemly? Sure. Lawyers can be quite the unseemly bunch.
But, if I had to make a judgment, the fact that Carson probably would not approve of the release of this material (that is what I presume, at least), he should not disclose it.
-Jut
“casting someone in any sort of negative light’ is not the standard to determine if information is confidential. Giving someone ANY information (positive or negative) in *confidence* is what determines that it is confidential.
“Unseemly? Sure. Lawyers can be quite the unseemly bunch.”
Everybody does it rationalization.
“But, if I had to make a judgment, the fact that Carson probably would not approve of the release of this material (that is what I presume, at least), he should not disclose it.”
Irrelevant to assume what Carson would or would not approve of in his current (permanent) absence. He gave information in confidence, with no instructions for release, the assumption automatically defaults to: “He does NOT want the information released”.
If a client has a discussion with me in the presence of a third party, that just means that “privilege” does not attach for purposes of later evidence/testimony. Any decent attorney would 1) remind his/her client that a third party is present so be quiet; and 2) would still keep the secret unless compelled to testify.
As many do, you are confusing privileged communications with secrets and confidences. Unlike privilege, something can be a confidence despite the fact that others are aware of it—even facts in public records can be confidences that the lawyer can’t reveal to the detriment of a client.
Jack, you are being a bit disingenuous. That is a statement I will retract if you can answer one question: I am not a scholar on the Lizzy Borden case, but did her lawyers have ANY confidential information regarding her guilt that was not ALSO a privileged communication? We (I can’t speak for everyone, but, it is the internet, so, what the hell, I will) are not failing to make a distinction that you have already failed to make.
You know that privileged information can overlap with confidential information. That is why the rule I cited (I prefer to keep my location unknown, but I e-mailed you so you can check my jurisdiction) has a carve-out for privileged information. They ARE different, but they ARE related. Even the examples you gave (to save a life) will often come from privileged communications. If a client says he will kill himself or his mother or the President, that is privileged, except that the rules on confidentiality (and, yes, the rules on privilege) allow an exception for those things.
And, I may have to disagree (hell, I will just disagree) that public information is confidential. It may be, but I will use the trivial example to support my point. If I am the attorney of record in a lawsuit, I have no problem revealing that fact to third parties, even though the identity of my client is normally confidential. The fact that I am required to be public may fit into one of the exceptions (required by law). So, if someone asks me about the trial I am getting ready for, I have no problem discussing the public record, even though I am hesitant to name names (even though that information is readily available).
But, on that point, are you suggesting that any attorney who gives an interview on the news channels (Zimmerman or O.J. for example) were violating their duty of confidentiality (because, I think Alan Dershowitz might be surprised that we know whom he represented).
Okay, a little too sarcastic, perhaps. I better pry my keyboard from my cold dead hands.
-Jut
Privileged communications and confidences/secrets, as used in the rules, are definitionally distinct. The former are solely communications from client to lawyer, and a lawyer cannot be compelled to real them. Confidences are far broader, and include more than statements , but also facts, like the fact that a client can’t pay his bills, or even his identity, in some cases. A lawyer has a duty to protect both. Yes, both are confidential, but confidences/ secrets are not the same as privileges.
I noted the Borden case because a court protected both privileged communications and confidences. “I am guilty” would have been one of Lizzy’s privileged communications. Other evidence, like the statement of others, that pointed to her guilt were confidences.
Nothing disingenuous about any of this.
As for public records—you’re just wrong. If something becomes general knowledge, that can’t eb a secret, but, for example, information that could be dug out of court records by anyone (if one knew where to look) may still be client secrets. Lawyers have been disciplined severely for revealing these to the detriment of a client.
texagog04:
“Giving someone ANY information (positive or negative) in *confidence* is what determines that it is confidential.’
That is not what my rule book says. It says that a lawyer may reveal information relating to representation of a client if “the information is not protected by attorney-client privilege under applicable law, the client has not requested that the information be held inviolate, and the lawyer reasonably believes the disclosure would not be embarrassing or likely detrimental to the client.
-Jut
That sounds a lot like the Compliance Dodge to me. We’re discussing ethics. Just because a rule protects certain behavior, qualified by the phrase “reasonably believes”, does not mean the rule says “go ahead and do it”.
We are discussing ethics, but the post specifically implicates a question of “professional” ethics. That is why I qualified my response to put it into that context.
In this context, “ethics” is an ambiguous term.
And, no, the rule does not say “go ahead and do it,” but it does permit disclosure under those circumstances.
-Jut
I’d like to know your jurisdiction: privileged information (that which is given to an attorney for the purpose of a legal opinion) and confidential information (literally everything a lawyer learns about a client in the course or and as a result of the representation) are two different things, and the post is about the latter. In most jurisdictions, the presumption is that the client is not willing to have secrets revealed, and he or she does not have to request that they be kept secret. In any event, Carson was very private, and many of the revelations in the book are embarrassing and unflattering.
Relating to the representation is interpreted VERY broadly—often it is stated as “information learned during the course of the representation.”
No matter what rules you use, this is terrible.
Not exactly. Just because you learn information about a client, it is not protected 1.6 information unless it is related to the representation.
But in the interest of trust, we interpret that very broadly. New York, for example, has said that if you are meeting with a client in his office, what you overhear in a bathroom stall in the building’s Men’s Room is protected by 1.6
Well that’s just stupid. Whoever wrote that opinion must not have read the comments. Oh, wait, NY doesn’t have comments!
texagog04:
“Unseemly? Sure. Lawyers can be quite the unseemly bunch.”
Everybody does it rationalization.
Actually, it was an attempt at self-deprecating humor. Not a rationalization.
-Jut
Oh. Hahaha.
I just noticed that in HuffPo this morning. Should I be surprised? A lot of people think that ethics dies with their client.
Carson was a very private person, unlike Jay Leno… Can’t think he’d be very pleased that someone is ratting him out…. Wouldn’t surprise him though either.
Privileged or secret or confidence….no lawyer should “rat” out his/her current/former/deceased/whatever client for any reason and most especially to make a butt load of money. This sleaze bag has no ethics…but then again did he ever? He goes in the pot with the bottom of the pond’s scum. He will make no money off of me.
The attorney-client communication is waived when the client publicly accuses the attorney of wrongdoing. Once that happens, the attorney can disclose any privileged information necessary to defend himself.
Carson sued Bushkin for malpractice, and made public accusations against him of self-dealing. That clearly waived the privilege, at least insofar as what Bushkin felt reasonably necessary to disclose in his defense. The question is how far does the waiver extend in a relationship that lasted 18 years? Without knowing the details of what Bushkin was accused of, it’s hard to say.
Wrong, wrong wrong. ABA Rule 1.6 says,
b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
That limits it to defenses in formal proceedings, not books, and beyond the proceedings, the duty of confidentiality remains. Treat it like it has been waived, and you get disbarred.
Tell you what, how about not misrepresenting the Rules of Professional Conduct here? That was the equivalent of telling someone to start jogging when you’re having a heart attack. I teach this stuff.