[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

The recognition of confidentiality as a core professional obligation arose first in cases
applying the attorney-client privilege, which Wigmore dates to the seventeenth century. 1
By the twentieth century, the idea that lawyers were forbidden from disclosing client
confidences also was recognized in agency law as an integral part of the fiduciary duty of
loyalty that lawyer-agents owe to client-principals. 2 At the beginning of the twentieth
century, both the attorney-client evidentiary privilege and the agency duty of
confidentiality were incorporated into lawyer rules of professional conduct as the obligation
not to divulge confidences and secrets of a client. 3
Throughout this legal development, client-lawyer confidentiality has been justified by
both a consequential utilitarian rationale and a rights or duty-based deontological rationale.
The utilitarian view usually concludes that confidentiality promotes the greatest good for
the greatest number because it is essential to making the legal system work. The
deontological view holds that confidentiality promotes respect for human autonomy by
guaranteeing trust and privacy in the client-lawyer relationship.
Utilitarians focus on consequences and argue that to do their job, lawyers need
complete and accurate facts, both about what has already occurred and what the client
contemplates doing. Lacking these facts, the lawyer might either apply the wrong law or
give incorrect legal advice, or both, which in turn will reduce public confidence in the legal
system and in lawyers. 4 Some utilitarians disagree, arguing that confidentiality actually
harms society and the legal system. Jeremy Bentham, for example, argued that the attorneyclient
privilege should be abolished because it obscured the truth from the courts and
allowed those with something to hide to get away with unlawful behavior. 5
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