'Anything You Say May Be Used Against You': A Proposed Seminar on the Lawyer's Duty to Warn of Confidentiality's Limits in Today's Post-Enron World

Abstract

In light of recent developments, the confidence that one's communications with a lawyer will remain sacrosanct today may be badly misplaced. This raises important questions concerning the duty of lawyers: When, to what extent, and in what detail, does an attorney communicating with someone who may expect confidentiality, have a duty to explain in advance the circumstances under which the information gained may subsequently be revealed pursuant to these or other confidentiality loopholes? Will the interviewee "clam up" in the face of such Miranda-like warnings? If so, what does this do to the premise of Upjohn and the Model Rule comment that confidentiality enables attorneys to obtain the facts necessary to advise properly against illegality? These are significant questions and are the central focus of this essay. But rather than directly answering, I propose a law school student seminar to explore them. In the course thereof, I venture directions toward some tentative conclusions.

Keywords: legal education, confidentiality, privilege, evidence