NOBODY Expects...

If someone, client or not, approaches me and gives me information in confidence - that is to say, on the strict understanding that I shall not divulge it to another without my informant's permission - then I will consider myself bound in conscience not to divulge it. The nature of the information is not relevant to my obligation, once I have accepted the information on that basis of confidentiality. (Naturally, one should not rashly or casually enter into such a situation).

If a law should be passed providing that the State shall be entitled to demand of me that I break the confidence, I will prefer to break that law than to betray my informant's trust.

Martin Luther is not really a hero of mine, but he did have his moments. I adopt his wonderful statement

Unless I am convinced by ... plain and clear reasons and arguments, I can and will not retract, for it is neither safe nor wise to do anything against conscience. Here I stand. I can do no other."

Henry David Thoreau expressed it thus

If the machine of government is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law.

Is This Not Immoral ?

There are those who say that what I am expressing above is an immoral stance. The only justifications so far advanced (to my knowledge) for that view are

1. "A citizen is morally obliged to obey the law"

   There is an implication that that obligation is subject to no qualification, reservation or exceptions, and is, therefore, unlimited. In turn, this seems to amount to saying that the civil law is always identical with morality.

   Can this really be the case ? What about the position of the defendants at Nuremberg - most of whom claimed that their misdeeds were entirely legal under German law of the time- then ? Were their punishments wrong ?

2. "The ends justify the means"

   Not many realise that this formulation was apparently much used by Torquemada, the villain of The Spanish Inquisition, and that it was precisely this formulation that was repudiated very quickly by the Vatican authorities of the time, and which for centuries was regarded by all educated people as the very epitome of immorality. It is still so regarded by me.

Many readers will protest that the context of this discussion is everything, that context being the need to address the problem of the sexual abuse of children, and the failure to reveal it for so long.

Context cannot be unimportant, but is it ever all-important ? I say not. Furthermore, it will be seen that references of this kind to "context" are but another way of saying that the end justifies the means.

Do I think that there are NO circumstances in which I would break a confidence ? "Never say never" is a good rule. Indeed, to say "never" is to bind one's future conscience with the decision of an earlier consideration, which may have been imperfect for one reason or another.

However, I refuse to delegate the exercise of my conscience to the legislature, and still less to "public opinion", any more than I am willing to delegate it to the Pope.

Note that I make these remarks not in my capacity as a lawyer, but as a human being.

Comments

[Ariel]

Using the client/attorney privilege is such an apt example of when someone should break the law if such a law existed. If the State can't get your client on what they first charged, fish until they can find something else, you being on the hook.

That people shouldn't confuse morality with the law I thought should have been settled 2000 years ago in what people later called "Christendom", and remembered by the societies that have grown from that religion. But, no, the authoritarian mindset still prevails. Law is morality, morality is Law. HDT knew better.

The State has it's own version of hiding "sexual abuse of children" to be metaphoric, it's called immunity, whether qualified, absolute, or sovereign. It allows the Agents of the State to hide their corruption, to survive their corruption, no different than the Catholic Church beyond the Confessional into the Hierarchy.

Or, to be really blunt, we've got a lot of schmucks that think Authority is to always be followed. To do so makes you a good, righteous citizen, blameless in all that happens because you followed the Law and were thus good. Anyone who dares do differently is an immoral troublemaker, lacking in any basic respect for what is right. So, we have the German schmucks under the Nazis, Italian schmucks and Spanish schmucks under the Fascists, the Jim Crow schmucks in the US, the Apartheid schmucks in SA, and on and on.

I do understand the fear of those who weren't schmucks because I remember a quote from a Jazz musician who lived under Jim Crow when asked if he hated white people, parenthetically because of my memory: "No, you don't understand, it was White people that protected me. A Black man couldn't, a Black woman maybe with her body, but a White man or woman could, and a lot did. They put themselves in danger for me and they hated Jim Crow but couldn't escape it so they did what they could for me." I hope that's a good summation of what I read long ago, because they were the Atticus Finches' in a world of Bull Connors. The others were schmucks.