Abstract

According to Aristotle, general legal rules will be inadequate in certain instances, due to the injustice these rules may cause when applied to specific fact pat-terns. As Aristotle argued in the Nicomachean Ethics, his foundational text on ethical principles:

[A]ll law is universal but about some things it is not possible to make a universal statement which shall be correct. In those cases, then, in which it is necessary to speak universally, but not possible to do so correctly, the law takes the usual case, though it is not ignorant of the possibility of error. . . . When the law speaks universally, then, and a case arises on it which is not covered by the universal statement, then it is right, where the legislator fails us and has erred by over-simplicity, to correct the omission—to say what the legislator himself would have said had [h]e been present, and would have put into law if he had known.

As a result, Aristotle emphasized the need to create equitable exceptions to general legal rules in the overall pursuit of justice.

Immanuel Kant offered a different ethical argument in his Grounding of the Metaphysics of Morals, in which he stated: “Hence there is only one categorical imperative and it is this: Act only according to that maxim whereby you can at the same time will that it should become a universal law.” Thus, Kant argues that ethical rules should only be framed as universal principles and that justice can only be founded upon a general ethical rule that can transcend all factual particulars.

This article will take the side of Kant, arguing that confidentiality to the client is a moral good, and thus should be one of the lawyer’s fundamental maxims, with as few exceptions for disclosure as possible. Currently, Rule 1.6 of the ABA Model Rules of Professional Conduct, which deals with confidentiality, is replete with exceptions.

Continue reading Attorney-Client Confidentiality is a Moral Good: Expanding Protections of Confidentiality and Limiting Exceptions

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