Ethically challenged left-wing website Salon somehow found an ethically challenged law professor, Cassandra Burke Robertson, to justify the leaks in the Trump Administration. Robertson, despite being a Distinguished Research Scholar and the Director of the Center for Professional Ethics at Case Western Reserve Law School, advocates unethical and sanctionable conduct in a jaw-dropping post, “When is a leak ethical?”
Here, professor, I’ll fix your misleading and dishonest article for you: It’s NEVER ethical to leak.
She begins by noting “I am a scholar of legal ethics who has studied ethical decision-making in the political sphere.” Wow, that’s amazing….since she apparently is hopelessly confused about both, or just pandering to Salon’s pro-“resistance” readers.
“Undoubtedly, leaking classified information violates the law. For some individuals, such as lawyers, leaking unclassified but still confidential information may also violate the rules of professional conduct.”
1. It is always unethical to break the law, unless one is engaging in civil disobedience and willing to accept the consequences of that legal breach. By definition, leakers do not do this, but act anonymously. Thus leakers of classified information, lawyers or not, are always unethical, as well as criminal.
2. Lawyers may not reveal confidences of their clients, except in specified circumstances. Here is D.C. ‘s rule (my bolding):
Rules of Professional Conduct: Rule 1.6–Confidentiality of Information
(a) Except when permitted under paragraph (c), (d), or (e), a lawyer shall not knowingly:
- (1) reveal a confidence or secret of the lawyer’s client;
(2) use a confidence or secret of the lawyer’s client to the disadvantage of the client;
(3) use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.
(b) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.
- (c) A lawyer may reveal client confidences and secrets, to the extent reasonably necessary:
- (1) to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm absent disclosure of the client’s secrets or confidences by the lawyer; or
(2) to prevent the bribery or intimidation of witnesses, jurors, court officials, or other persons who are involved in proceedings before a tribunal if the lawyer reasonably believes that such acts are likely to result absent disclosure of the client’s confidences or secrets by the lawyer.
- (d) When a client has used or is using a lawyer’s services to further a crime or fraud, the lawyer may reveal client confidences and secrets, to the extent reasonably necessary:
- (1) to prevent the client from committing the crime or fraud if it is reasonably certain to result in substantial injury to the financial interests or property of another; or
(2) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of the crime or fraud.
- (e) A lawyer may use or reveal client confidences or secrets:
- (1) with the informed consent of the client;
(2) (A) when permitted by these Rules or required by law or court order; and
(B) if a government lawyer, when permitted or authorized by law;
(3) to the extent reasonably necessary to establish a defense to a criminal charge, disciplinary charge, or civil claim, formally instituted against the lawyer, based upon conduct in which the client was involved, or to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer’s representation of the client;
(4) when the lawyer has reasonable grounds for believing that a client has impliedly authorized disclosure of a confidence or secret in order to carry out the representation;
(5) to the minimum extent necessary in an action instituted by the lawyer to establish or collect the lawyer’s fee; or
(6) to the extent reasonably necessary to secure legal advice about the lawyer’s compliance with law, including these Rules.
- (f) A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that such persons may reveal information permitted to be disclosed by paragraphs (c), (d), or (e).
(g) The lawyer’s obligation to preserve the client’s confidences and secrets continues after termination of the lawyer’s employment.
(h) The obligation of a lawyer under paragraph (a) also applies to confidences and secrets learned prior to becoming a lawyer in the course of providing assistance to another lawyer.
A lawyer whom a client cannot trust to keep confidences cannot remain that client’s lawyer. To ethically reveal a client confidence, the lawyer must 1) inform the client that he or she intends to do so (Rule 1.4), withdraw from the representation (assuming the client does not consent to the representation), and accept responsibility for the revelation.
This, however, is not “leaking.” Lawyers who are caught leaking client confidences are virtually always disciplined, and harshly, because this is a black-letter professional ethics violation, as well well as a breach of trust, a general ethics violation.
Moreover, Burke glosses over the fact that government employees, including lawyers, are required by law to report unlawful conduct, by clients or others. In her infuriatingly dumbed-down and lazy piece, she writes,
“Researchers have found that a robust internal process may be a key factor in preventing leaks. It is common for people to try to work within the system before leaking to the public. It is when higher-ups acknowledge illegal conduct but refuse to do anything about it, or when individuals suffer retaliation for bringing concerns up the internal chain of command, that leakers may believe that the only ethical choice is to go public.”
She’s changing the subject, and rationalizing. The fact that bad management and inadequate internal processes encourage leaks doesn’t mean that they justify leaks, which are per se unjustifiable. “It is common for people to try to work within the system before leaking to the public” ? I should hope so, since someone who goes to work for an organization in order to leak information is called “a spy.” Spies are unethical. Leakers may believe that their only choice is to go public, but that doesn’t mean they are correct to believe that (if they believed that their only choice was to shoot their boss, would that make doing so right?), and “going to the public” and leaking are not equivalent. “Going to the public” can be done ethically, but that must include do so openly and transparently, and accepting responsibility for the revelation. Leaking cannot be done ethically, because it involves subterfuge and deception, both of which are unethical.
Cassandra Burke Robertson is a disgrace to her profession, the ethics field and the institution that employs her. Her Salon article is nothing more than a misleading attempt to rationalize and justify illegal and unethical leaks in this administration, while intentionally misinforming members of the public who are not lawyers or government employees.