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.
Graphic: Johnny Carson 360