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.
Never.
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.
Robertson writes:
“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.
Ethics Alarms 
Sheesh! With “ethics” like that professor endorses, who needs ethics?
Robertson is one reason that the legal profession has a bad name and most lawyers are not respected. Sure, you’ve got your ambulance chasers and all that, but a “professor” to rationalize breaking the basic rules of professional conduct for political reasons is worse. Fire her. Disbar her. The legal profession (her own state bar and the ABA) should land on her, and hard. And by the way, her sloppy, defensive prose should be seen through by 10-graders, not just other lawyers.
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.
Does this hold true in all nations, or only in democracies such as the United States? To take an extreme example, those who helped Jews hide in Nazi Germany were breaking the law, and rightly attempted to escape the consequences.
When the question begins “to take an extreme example,” then I know we are in Ethics Incompleteness territory. The statement implies self-governance, not totalitarian oppression.
The statement implies self-governance, not totalitarian oppression.
Thanks, that clarifies the issue for me.
We are in an era of such oppression in this country sir. Open your eyes. Our freedoms are being degraded slowly as they were in Pre WW2 Germany.
This is an idiotic, useless and non-substantive statement, and “sir” doesn’t make it less so. You’ve explained nothing, pointed to no persuasive evidence, suggesting that you have an uninformed opinion only. This isn’t acceptable here. “Open your eyes” is a lazy substitute for argument. Do better, or don’t comment.
I believe Jack would consider it civil disobedience for a citizen of Nazi Germany to help Jews hide.
Your question prompted me to think: It is ethical to resist force applied by an authority or assumed authority, or an agent thereof, that is acting unethically – and it is ethical to resist such with overwhelming force.
Pretty anarchic, huh?
I see that Jack replied minutes before I did. I still think Jack would call Jew-hiding in Nazi Germany an act of civil disobedience.
luckyesteeyoreman wrote, “…Jew-hiding in Nazi Germany an act of civil disobedience.”
I think civil disobedience is much different, it’s not done in secret, it’s done publicly as a form of peaceful protest.
Jew-hiding in Nazi Germany was selfless acts of moral courage in the face of almost certain death if caught. In my eyes, those who hid Jews were true selfless heroes that are equivalent to using your body to cover a live grenade to save your buddies in combat. This kind of selfless moral courage is rare, very rare indeed, and saying that Jew-hiding is just simple civil disobedience truly diminishes the selflessness of the life or death struggle of this act of moral courage.
That’s basically what happened at Lexington in the beginning of the Revolutionary War.
I’d argue it depends on the situation. If I was subject to an unethical arrest or seizure of property, I wouldn’t RESIST, but I would certainly get a good lawyer. If I was being denied due process entirely (locked up in some hole with no access to counsel), I’d look to escape and take my story to the press. Armed insurrection would only be an option when due process, elections, and ethical law enforcement is completely and utterly gone.
“Armed insurrection would only be an option when due process, elections, and ethical law enforcement is completely and utterly gone.”
Armed insurrection wouldn’t be an option then…
As arms would be taken as a 1st step before the removal of due process, elections, and ethical law enforcement…
That’s when you have your Lexington and Concord.
I’m convinced that the general public doesn’t understand ethics. Too many think the word ethics = what I think is right under the circumstances.
THIS
But ethics IS what is right under the circumstances…
People fail in evaluating the circumstances and appropriately weighing values.
What I THINK is right is not necessarily what is right. Bias enters in. We don’t always think clearly. That’s where ethics comes in. We need to recognize what IS right, not just what we think is right. The list of justifications is essential to know and apply. I can honestly say my personal ethics meter has become much more reliable since I’ve had the chance to check my biases against the list.
I’d love to ask Robertson when she thinks it’s ethical to hack into a candidate’s emails. Perhaps when it’s necessary to expose corruption? Or if the candidate is trying to skirt the Freedom of Information Act by having a private server? You know, when “higher-ups acknowledge illegal conduct but refuse to do anything about it?”
No doubt Salon approves of Russian interference in our elections. Good to know.
For an entirely different perspective – and one that takes and entirely different perspective on the issue – none other than Malcolm Gladwell. http://www.newyorker.com/magazine/2016/12/19/daniel-ellsberg-edward-snowden-and-the-modern-whistle-blower
Basically, he suggests that government leaks are every bit as valuable and necessary as Pentagon Papers type of leaks; that they are symbiotically related; and that the key issue is maintaining a healthy balance between too much and too little on both sides.
For my taste, what he does is shed an entirely different light on the issue of leaks, one that takes it outside the purely ethical, into one of managing social and public policy. It just ain’t as simple as you would paint it.
At least that’s what I take from it.
Gladwell doesn’t know what he’s talking about; you do, so I don’t know why you would endorse this. Who judges what is ethically leakable? Why, the leakers, and they have no accountability at all. That’s a recipe for distrust and chaos, not ethics.
Ellsberg and Snowden deserved to go to prison, If they were so certain that their leaks were vital, they should be willing to pay the price.
It’s exactly that simple. This is the “It’s complicated” rationalization.
Perhaps Gladwell didn’t intend this, but I read his essay as an argument not for legitimizing leaks, but for greater transparency. If it’s worth letting the public know, it shouldn’t be discreetly leaked, if it’s worth keeping a secret, then leakers should have the book thrown at them.
But as you say, that’s no argument justifying leaking, though Gladwell almost says it is.
You are probably the only person gracious enough to assert, even tongue in cheek, that I’m smarter than Malcolm Gladwell. So, thank you for that bit of flattery (even if patently insincere).
But to follow up: Gladwell is mainly citing a Columbia Law School prof, Pozen who, writing in Harvard Law Review, summarizes his article as follows:
—————–
The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have
been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.
This Article challenges the standard account of that disconnect, which emphasizes thedifficulties of apprehending and prosecuting offenders, and
advances an alternative theory of leaking. The executive branch’s “leakiness” is often taken to be a sign oforganizational failure. The Article
argues it is better understood as an adaptive response to external liabilities (such as the mistrust generated by presidential secret keeping and
media manipulation) and internal pathologies (such as overclassification and bureaucratic fragmentation) of the modern administrative state. The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures.
Permissiveness does not entail anarchy, however, as a
nuanced system of informal social controls has come to supplement, and all but supplant, the formal disciplinary scheme. In detailing these claims, the Article maps the rich sociology of governmental leak regulation and explores a range of implications for executive power, national security, democracy, and the rule of law.
————-
This is what I’d call a political sociological approach to the issue of leaking. It has nothing to do with ethics per se. That’s not to say leaking is or isn’t ethical, but it IS to say that ethical lenses are not the only valid perspectives through which to view leaking.
I also found Gladwell’s strong contrast between Ellsberg and Snowden to be interesting: that part of the article IS about ethics, and he makes a strong case for painting some seriously different shades of gray between the two. Even in the purely ethical realm, it seems that leaking is not a simple matter of black and white.
You wrote, “Here, professor, I’ll fix your misleading and dishonest article for you: It’s NEVER ethical to leak..”
You and I are world’s apart on this, Jack.
Pinned Tweet
Edward SnowdenVerified account @Snowden Feb 10
Speak not because it is safe, but because it is right.
“Why do millennials keep leaking government secrets?”
“Because boomers keep doing evil shit” – it’s from Twitter… https://twitter.com/iboudreau/status/873412738852302849
Edward SnowdenVerified account @Snowden Jun 9
Edward Snowden Retweeted Washington Post
Absolute secrecy never benefits the public. Partisan battles over what is or isn’t a “leak” miss the point: we’re the ones left in the dark.
Edward SnowdenVerified account @Snowden Jun 8
Edward Snowden Retweeted The Associated Press
Even if details leaked by the FBI Director fell under confidentiality obligations, the public’s need to know here is the superior obligation.
“Sometimes the only moral decision is to break the rules.” – Edward Snowden
The Intercept Welcomes Whistleblowers – One of the founding principles of The Intercept is that whistleblowing is vital to holding powerful institutions accountable; in fact, we were launched in part as a platform for journalism arising from unauthorized disclosures by NSA contractor Edward Snowden. We are strongly committed to publishing stories based on leaked material when that material is newsworthy and serves the public interest. https://theintercept.com/leak/
Thank all that’s holy that White House leaks will likely continue for the foreseeable future. Without them, we’d probably believe all was swell and dandy.
On this issue, I’m on the side of ethics, and you are on the side of vigilantism, aka anarchy and chaos.
To that I will agree. I’m sorry it’s come to that, but I see no hope our government will ever find its way back to its once great roots.
If one is going to leak in the name of civil disobedience, then one should at least be willing face the consequences, instead of running like a criminal.
Perhaps they don’t wish to face the music when the music is warped.
Edward SnowdenVerified account @Snowden Jun 16
Edward Snowden Retweeted Freedom of the Press
Did you know the United States government keeps an ancient law on the books that forbids whistleblowers from making their case to the jury? https://freedom.press/news/americas-official-secrets-act-long-sad-history-100-year-old-espionage-act/
I read what you linked to, and I didn’t see anything to back up the statement from Snowden you quoted.
It’s in part 3… “Snowden has said publicly that it would be impossible for him to receive a fair trial in the U.S. because he would not be able to mount a public interest defense. Snowden said that he wants to be able to argue to a jury that he leaked information to journalists because he believed that the American people should know that the NSA was secretly spying on them. If he returned to the U.S. to face trial, however, he would not be permitted to make such an argument.” https://freedom.press/news/obama-used-espionage-act-put-record-number-reporters-sources-jail-and-trump-could-be-even-worse/
As it should be. The word he is looking for is “jury nullification.” Can’t argue that. Good.
“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.”
Does this mean James Comey is at risk of sanctions for his confessed leak?
Prosecutors are rarely disciplined, for the same reasons cops aren’t often convicted in shootings, and he was also not acting as a lawyer. If his leak is found to be illegal…there are some disputes about this—he might be suspended.
If you’re restricting the discussion to classified information, I would agree with you. But I disagree with your contention that leaks are ALWAYS unethical.
I’m a police beat reporter, and through the years I’ve had cops leak some vital stuff to me that’s helped expose corruption, waste and other malfeasance. These officers would get fired if they went public with their complaints, and they want to continue feeding their families, but they ethically can’t sit and do nothing when they see wrongdoing in their police department.
I think these people are eminently ethical, because they broke the “blue wall” and helped me expose wrongdoing. (And, the fact that I got good stories out of the deal never broke my heart, either!) 🙂
I don’t know if you meant ALL leaks are unethical, because you did say that but later narrowed it down to leaks of classified information. But in my humble opinion, some leaks are quite ethical.
So…Russian hackers…ethical? They exposed a lot of corruption and helped educate the public.
I guess the ethics lie in intent. If the hacking (if there even was hacking) was meant to disrupt an election, that’s unethical.
Is the question really about the definition of “leak”? I would not consider it a leak when an insider provides information that a crime has been committed in an organization. Reporting a crime would seem to be an ethical thing to do.
Providing classified information by leaking it is always unethical. There are multiple laws to protect classified information and everyone handling it has taken oaths to protect it. To leak that information requires breaking the law, an unethical act.
Using the term whistleblowing as a synonym for leaking is a disingenuous attempt to make it sound like leaking is ethical because the law provides for whistleblowing. A police officer providing evidence of corruption is a whistleblower. A person with access to classified information who releases it without authorization is a criminal.
Isaac asks about the Russian hackers. Were they ethical? If they were actually acting for the Russian government, then I think they must be. If they are unethical, then the NSA is unethical because their primary mission is to acquire secrets from other governments by hacking and other activities. Exactly what the Russians did and continue to do. I am sure that former Secretary of State Henry Stimson would strongly disagree and declare such hacking highly unethical. As he famously said, “Gentlemen do not read each others’ mail.”
All leaks are unethical. This is just an “the ends justifies the means” rationalization. And having been the target of false anonymous “leaks” in the past, they are unfair as a matter of law and ethics. As a manager and executive, I told subordinates that if they could not make a complaint on the record, I didn’t want to hear it.
But if the leak is something that would otherwise be presented to the public but is being hushed organizationally because enough high ranking guys would be implicated, how is that leak unethical?
tex, that’s my point. There are some instances where telling the cops or going on the record means you’ll lose your job and never work in that field again. In theory, it’s one thing to say, “well, if you aren’t willing to go on the record, then you shouldn’t be leaking information.” But people need to feed their families. I disagree that it’s unethical to secretly leak something. And, yes, the ends sometimes do justify the means — and that’s not an admission that anything unethical went on in the first place.
If I’m in a situation where I see something terrible going on, and my choices are:
1. Go on the record and likely lose my livelihood.
2. Leak something to a newspaper
3. Do nothing
…how is it unethical if I pick B? The intent is to expose something bad; how is that unethical just because the person in question is taking a route that will both expose the wrongdoing and allow him to continue feeding his family?
It’s a very fine line to walk along. One must be excessively careful they are actually leaking something that *would legitimately* be revealed to the public if the *individuals* in power were not hiding it versus something the would NOT be legitimately revealed to the public because the *system or protocols* were designed to keep that specific type of information secret.
It’s very unethical to Pick B if an individual is merely leaking something that individual thinks of his own accord that the public ought to know even though the system is set up to protect that information from public knowledge…I’d think it’s ethical to Pick B if an individual is leaking something that is hidden by superiors who have no legal mandate or legal authority to keep the information hidden and the information reveals illegalities.
But there could very well be a wide gap between those two types of information any individual may feel led to reveal that I don’t have an answer for right now.
But, also, make no mistake, “leaking” (even if it were information that people outside the organization were legally entitled to know but was being hidden) does a certain amount of damage to the organization in terms of trust, cohesiveness, and candor. Even if the leak lead to rectifying the situation, it wouldn’t fix the fact that someone was essentially a “snitch”. And that does some harm to the organization even if in the act of doing more good. And that harm would still linger even in an organization “repaired” as a result of the leak.
In any case, the choice between “doing the right thing” and “losing your job” is an ethical dilemma. Your hope is that a leak creates a third option and that “doing the right thing” or “keeping your job” is a false dichotomy.
I think it depends on whether or not leaking actually *is the right thing*…which I’d submit, more often that not, it isn’t.
I suppose it depends on the situation. I disagree with a blanket statement that ALL leaks are ALWAYS unethical.
To say “all leaks are unethical” or to rephrase “leaks are never ethical” requires a precise definition of leaks and unethical. You have clearly defined unethical in the Concepts and Special Terms section of the blog. When I try to find the definition of leak in the sense it is used here, I find a number of definitions including: “(of secret information) become known”; “the origin of secret information that becomes known, or the act of making it known”; “an intentional disclosure of secret information”; and “to give out (information) surreptitiously” among others.
Some of the definitions require that the information be secret (and I take secret to mean knowledge limited to a certain number of people that they don’t want generally known like the Coke recipe or illegal activity, not just information classified by the government) but one does not. None of them specify the destination of the information (newspaper, police, EPA, etc.). None specify whether or not the secret information is about legal or illegal activities. One definition requires that the information be revealed surreptitiously for it to be a leak. None specify whether or not the information must be factual but I think by their wording they imply that.
By some of these definitions, if I work for a mental health clinic and learn that the executives are getting kickbacks for referring patients to a certain hospital, I am a leaker if I provide that information (which the executives would certainly like to keep secret) to the Agency for Health Care Administration. But if I know that information and don’t reveal it, then I am complicit in their illegal patient brokering scheme. I have also read back in the blog and found instances where I believe you to be saying that reporting crime is ethical. It seems that the same act is then both ethical and unethical. Or is it ethical if I provide all of my contact information but unethical if I report it surreptitiously?
I think it is stretching the concept of leak to call making false, malicious reports about someone a leak. If I see my neighbor beating their child and I call and report it anonymously it could be considered a leak by the above definitions. If I call and falsely report them for beating their child because I want get even with them for something, I would call that harassment and slander not a leak. Additionally, making false reports of abuse in Florida is a felony. I interpret your use of quotes around the word “leaks” in the example pertaining to yourself as an indicator that you are differentiating those kinds of leaks from leaks as used in your statement “all leaks are unethical.”
Or should “leaks” be defined the way Justice Stewart defined hard core pornography, “I know it when I see it.”
Leaks has a precise definition in the context of the article at hand. It means anonymous revelations of confidential or proprietary information. Alerting authorities directly is whistleblowing, but not leaking. In “The Insider,” the tobacco employee was a whistleblower, not a leaker.
By some of these definitions, if I work for a mental health clinic and learn that the executives are getting kickbacks for referring patients to a certain hospital, I am a leaker if I provide that information (which the executives would certainly like to keep secret) to the Agency for Health Care Administration.
You are a leaker if you do it anonymously. You are a whistle-blower if you do so openly, after exploring every internal option to address the probal..
But if I know that information and don’t reveal it, then I am complicit in their illegal patient brokering scheme.
Correct.
I have also read back in the blog and found instances where I believe you to be saying that reporting crime is ethical. It seems that the same act is then both ethical and unethical
Why is this anonymous component so elusive? When I report a crime, I give my name.
Or is it ethical if I provide all of my contact information but unethical if I report it surreptitiously?
Reporting a crime isn’t a “leak” unless there is a duty to keep a confidence. This tangent isn’t helpful.
I think it is stretching the concept of leak to call making false, malicious reports about someone a leak.
What???? It’s a leak when it is made. The truth of the claim may not be known for a long time. There are accurate leaks and false leaks, well-intentioned leaks and malicious leaks.
Since the definition of “leak” includes the clarification that the released information was hidden within the bounds of legally granted authority, then I change my commentary from last night, in that my commentary from last night covers “whistleblowing”.
Thank you. The definition you provide is what I have taken to be the way leak is defined in this context with “anonymous” being a key part of the definition but only one of the four dictionary definitions makes that distinction.
in the case of classified information, the relevant Executive Orders that establish and set the policies for CI specifically prohibit using classification to hide lawbreaking.
If someone in the government is engaging in something illegal and making the details classified in order to cover it up, then whistleblowing (not “leaking”) is explicitly permitted and the cleared person is legally protected for revealing the illegal activity.
–Dwayne
Salon Asks: “When Is A Leak Ethical?” NEVER. That’s When.
Jack,
I disagree. Never is infinite. In my opinion using the word “NEVER” in this way is too open ended and goes too far. Now that I’ve said that, I’m going to use a way of describing this that I got from a friend that I think is pretty effective; using the word “never”, even as it relates to the legal profession, is likely an asymptope approaching “never” but never actually reaching it.
I’m going to go way out in left field for a moment with a completely hypothetical scenario.
You work for the government in a capacity that has knowledge of top secret information about a long planned un-publicized military operation that is on the brink of being conducted in a two days in a foreign land and you have confirmation that the military unity is already in the country. The covert operation is to literally conduct genocide of an entire population of indigenous people (small population, less than 500 people in a remote village location) and it is all being planned and conducted completely in secret. You have already see two people vanish from the team of insiders that have outspokenly opposed the operation and it’s interesting that their families have also vanished. You are in literal fear for your life and that of your family if you say anything but your morals are driving you to do something to stop the planned imminent genocide of an entire race of people. You believe this is a real operation, it is imminent, and there is clear evidence that you are not being setup.
Is it unethical to secretly tell the press about this so the people in your country and the world are alerted to the knowledge of the planned genocide in an effort to stop the plan which you know cannot stop by any other means?
Okay, discuss…
“…government employees, including lawyers, are required by law to report unlawful conduct, by clients or others.”
So in the scenario is there no one in authority that can be trusted? No one you can go to who can be counted on to expose the operation, and who is too big a public figure to get rid of (like the president, any of the Joint Chiefs, a member of Congress)? That would be my first avenue of recourse. I’d try to stay anonymous for the time being, but I think it would set a better ethical precedent to go through the legal system rather than the media.
However, if literally everyone else with the means to do shut the operation down was too scared/corrupt to be trusted, then I believe in that specific scenario it would be ethical to secretly leak the intel to the public at large.
Concur.
I have never been in a situation where reporting stuff through proper channels did not result in a situation minimally acceptable by my standards.
Really high level compartmentalised classification is necessary sometimes. It is always dangerous. Those entrusted with keeping such secrets also have the responsibility to act in accordance with minimal standards, otherwise they become “enemies, domestic”, and the duty to obey the law is over-ridden by oaths to protect the constitution etc.
You go through the proper channels. If none exist, the system is so broken that you can’t betray something that already betrays itself.
I leave the question open as to whether hypothetically such silence and not violating certain oaths would have resulted in some very guilty people getting away Scot free. However, if such existed, their harm was contained thereafter. Revealing it as should have been done in a perfect world would have harmed national security, but a stop could be quietly put to it.
Gamereg & Sue Dunim,
I think you’ve both made an assumption about the hypothetical scenario that I posed; you assumed it was the United Stated government, it’s not, it’s ISIS.
Now that you know that little detail;
Does that change your perception?
Does that change your conclusions?
If you actually READ the original article — free of the histrionic ranting of this blogger — you will find that Prof. Robertson NEVER even says that it is ethical to leak anything. The article, instead, discusses how ethics scholars discuss the subject, including legal regulation of information and whistleblowing. Her article, unlike this blog post, is thoughtful and balanced.
Anyone who read her post knows you are lying, or, in the alternative, an idiot. Quote: “Scholars who study leaking suggest that it can indeed be ethical to leak when the public benefit of the information is strong enough to outweigh the obligation to keep it secret.” Fact: untrue. No legal ethics scholars say that, or think that. Contrary to your factually false comment, she never even states (as I did) the professional rule that specifies an attorney’s duty to keep client confidences, and the narrow exceptions that would excuse leaking: “Public benefit” is not, and must not be, one of those exceptions. Moreover, the professor’ incompetent article unethically confounds disclosure with leaking. Disclosure of a secret may be justified, but leaking–disclosing without being transparent—cannot be justified, and no scholar has tried to do so. Except her. She’s incompetent, and misinformed the public. She asked a question: when is it ethiacl to leak? The answer, as I said, is never. Never.She strongly implies otherwise.
Learn to read.
Oh—I almost forgot: when you come on this blog and impugn my integrity falsely while spreading disinformation, you get banned. No wonder you think that unethical and incompetent article is “thoughtful.” Anyway, you are banned, and won’t get another one of your obnoxious and false comments posted here.
Here’s my evaluation of George and his comment.
1. George didn’t actually read and understand the Salon article.
2. George didn’t actually read and understand this blog and how it directly and indirectly relates to the Salon article.
3. George is showing off his sincere lack of intelligence by producing a comment that’s so easily verifiable as being false.
4. George’s comment is nothing but a false ad hominem personal attack aimed directly at the host of this blog.
5. George is morally bankrupt if he thinks his comment was, in any way, appropriate.
6. George is an attack dog for Salon, Cassandra Burke Robertson, or both; if he’s not an attack dog for the above then George either has some personal reason to try to discredit the host of this blog or he’s a complete imbecile.
All that said; I’ve really gotta give credit where credit is due, George has thoroughly earned himself this award.
Congratulations George.