V-1 CHAPTER V CONFIDENTIALITY AND ZEAL I. INTRODUCTION Both preserving a client's confidences and representing a client zealously are viewed as fundamental duties of an attorney. What is the source of these duties? What is there about the role an attorney plays which requires these obligations? While there is no serious dispute that confidentiality and zeal are desirable attributes of an attorney in representing a client, at some point, preserving a client's confidences or secrets may inhibit the truthfinding function of the adversary system or may prevent the just resolution of a dispute between parties. And at some point, zeal on the part of a client may infringe upon the rights of others and may lead the attorney to violations of law. How much impairment of the truth-finding function or infringement on the rights of others do the concepts of confidentiality and zeal allow? At what point must these concepts give way? Commentators have been debating these questions for some time, but have produced less than satisfying answers. This section will identify the competing interests at stake and examine attempts to resolve these issues taken by the Model Rules, the courts and the bar. II. CONFIDENTIALITY A. Attorney-Client Privilege The attorney-client privilege prevents attorneys from being compelled to disclose the confidences of their clients. It is an evidentiary privilege and has no application outside of the courtroom. In addition, its scope is normally quite narrow. Although, as the case below demonstrates, Missouri takes a broad view of the privilege, it is still available only in limited circumstances as defined by statute and common law. State ex rel. Great American Insurance Co. v. Smith, 574 S.W.2d 379 (Mo. banc 1978): [Respondent Judge ordered relators (fire insurers being sued for failure to pay) to turn over letters from their attorney written during the course of investigation of a fire and providing advice regarding whether to pay the claim. Relators brought a proceeding in prohibition to avoid turning over the letters on the grounds they were protected from disclosure by the attorney-client privilege embodied in RSMo. § 491.060. The Court rejected a narrow interpretation of the privilege it had taken in an earlier version of these proceedings (563 S.W.2d 62 [Mo. banc 1978]) and made permanent its ruling in prohibition, thereby prohibiting disclosure of the letters by the attorney.] The attorney-client privilege dates from the reign of Elizabeth I of England. See 8 J. Wigmore, supra, § 2290. In recognition of that common law privilege, the legislature has enacted a statute, § 491.060, which provides, in part:V-2 The following persons shall be incompetent to testify: (3) An attorney, concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client; The foregoing section has been held in a court of appeals opinion to be declaratory of the common law rule. . . .We agree that it should be so construed. The statute does not limit or diminish the common law rule. There are two prevailing views as to the scope of the attorney-client privilege, following an emphasis on two different fundamental policies. Dean Wigmore emphasized the fundamental societal need to have all evidence having rational probative value placed before the trier of facts in a lawsuit. While he argued against Jeremy Bentham's suggestion that the attorney-client privilege be abolished, he regarded it as an exception to what he considered to be the more fundamental rule, and one which "ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle." 8 J. Wigmore, supra, § 2291 at 554. A different fundamental policy is emphasized by Sedler & Simeone in "Privileges in the Law of Evidence: The Realities of Attorney-Client Confidences," 24 OHIO ST.L.J. 1 (1963). While the authors acknowledge Wigmore's view of attorney-client privilege as an exception to the policy of disclosure of all evidence, they view confidentiality of communications between attorney and client as the more fundamental policy, to which disclosure is the exception. This view is based in part on the duty of a lawyer to preserve a client's confidences, subject to a very limited privilege of disclosure, which is imposed by the Canons of Professional Ethics. The greater societal need for confidentiality is attributed to the relationship of lawyer to client in giving advice, a relationship in which secrecy has always been considered important. In support of a broad attorney-client privilege, the article states at p. 3: As long as our society recognizes that advice as to matters relating to the law should be given by persons trained in the law, that is, by lawyers, anything that materially interferes with that relationship must be restricted or eliminated, and anything that fosters the success of that relationship must be retained and strengthened. The relationship and the continued existence of the giving of legal advice by persons accurately and effectively trained in the law is of greater societal value, it is submitted, than the admissibility of a given piece of evidence in a particular lawsuit. Contrary to the implied assertions of the evidence authorities, the heavens will not fall if all relevant and competent evidence cannot be admitted. We find this analysis of the fundamental policy underlying attorney-client privilege to be preferable to that of Wigmore. There clearly is a societal need for persons to be able to employ and consult with persons trained in the law forV-3 advice and guidance as to legal matters. As recognized by Sedler & Simeone, confidentiality of the communications between client and attorney is essential for such relationships to be fostered and to be effective. It was so considered at common law as shown by the following from the case of Annesley v. Earl of Anglesea, 17 How.St.Tr. 1139 (Ex. 1743), in which the Honourable Mr. Baron Mounteney said at 1241: (A)n increase of legal business, and the inability of parties to transact that business themselves, made it necessary for them to employ . . . other persons who might transact that business for them. That this necessity introduced with it the necessity of what the law hath very justly established, an inviolable secrecy to be observed by attorneys, in order to render it safe for