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

The fiduciary relationship between principal-client and agent-lawyer is subject to one
significant limitation: Neither may violate the law. 2 Agency law recognizes principal and
agent as distinct, autonomous legal persons, and anticipates that they each will remain
responsible for the consequences of their own conduct. 3
Lawyers who exceed these bounds of the law face at least three consequences: criminal
accountability, civil liability, and professional discipline. 4
Court Orders
Courts order all kinds of conduct to carry out their duties. 5 In Chapters 2 and 3, we
discussed the inherent power of a court to regulate lawyers and order lawyers to provide
uncompensated representation. In this chapter, the next four cases (Hughes, Dean, Vioxx,
and Swidler & Berlin) illustrate another aspect of this bound of the law or legal limit: a
court’s inherent power to order disclosures ruled outside the confines of the attorney-client
privilege.
The Model Rules
The Model Rules of Professional Conduct recognize the power of court orders in several
key provisions. Most prominent are Model Rule 1.6(b)(6), which allows lawyers to disclose
confidential information where required by a court order, and Model Rule 3.4(c), which
states the lawyer’s basic obligation to obey the rules of tribunals, including court orders.
These provisions recognize and integrate the legal limit of a court order into the
requirement of a professional obligation. 6 They also presume that lawyers have a clear
fiduciary and procedural obligation to properly raise and protect client interests. For
example, lawyers have an obligation to assert the attorney-client privilege on a client’s or
former client’s behalf whenever a nonfrivolous claim against disclosure or limitation of the
scope of disclosure can be made. 7 Failure to do so could result in legally effective waiver of
the privilege by the lawyer, who a court will later characterize as acting with apparent
authority as the client’s agent. 8 Any harm that results from such a nonconsensual disclosure
could then subject the lawyer to claims of malpractice or breach of fiduciary duty.
The Contempt Power
Once a court has declared that confidential information is not privileged, the lawyer either
must comply with the court order to disclose or appeal the court’s decision. 9 The clients
and lawyers in Hughes, Upjohn, Vioxx, and Swidler & Berlin elected to raise claims about
the privilege on appeal. Except for Hughes, the lawyers were completely or somewhat
successful in convincing courts that the information was privileged or protected by the
work product doctrine, which resulted in reversal of the lower court’s order to disclose or
remand for further factual findings about the matter.
The lawyer in Hughes did not succeed on appeal, which meant that any further failure
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