Fw: A Duty to Warn ~ NYTimes

[Guest guest]

From: " ilena rose " <ilena@...>

Sent: Friday, July 27, 2001 2:55 PM

Subject: A Duty to Warn ~ NYTimes

> Dear Ilena,

> Please post this op ed from the NY Times Editoral page.

> Love, Henrietta

>

>

>

> http://www.nytimes.com/2001/07/26/opinion/26GILL.html

>

>

> JUL 26, 2001

>

> A Duty to Warn

>

> By STEPHEN GILLERS

>

> Lawyers at the American Bar Association's convention next week in Chicago

> will debate a single question whose answer will affect public health and

> safety for decades. The issue is whether a lawyer for a company who learns

> that his client's product is likely to cause physical injury or death

> should be permitted to warn the public, even if his client objects.

>

> The bar association currently recommends that lawyers should be forbidden

> to warn of these dangers. The great majority of state courts, which have

> the ultimate authority to regulate lawyers, have followed this

> recommendation.

>

> The idea that a lawyer should be free to blow the whistle on a dangerous

> product may seem obvious, but it is not obvious to lawyers. They view any

> exception to the profession's confidentiality rules with great suspicion.

> Many fear that clients would not be candid if lawyers had too much power

to

> reveal secrets: lawyers would never learn about dangerous products in the

> first place and so would never be in a position to persuade clients to do

> the right thing.

>

> This is a speculative argument and is certainly wrong in the case of

> corporate clients, who really don't have any choice but to confide in

> lawyers. It is not possible to make and sell a widely distributed product

> without help from lawyers, often dozens of them, every step of the way.

> Furthermore, a few states, like Georgia and North Dakota, now do have

> generally worded rules permitting lawyers to reveal client confidences to

> protect the public from physical harm, and there is no evidence that

> clients in those states have suddenly turned taciturn.

>

> But even if some clients would be less candid, that cost must be balanced

> against the greater harm that silence about a dangerous product can cause.

> We have lately become painfully familiar with stories about products whose

> defects became known only after they had harmed many. Asbestos, tobacco,

> exploding tires and unstable automobiles are just a few.

>

> At the meeting in Chicago, lawyers will consider recommendations of a bar

> association commission that studied legal ethics rules for four years. The

> commission has proposed a rule letting lawyers reveal client confidences

> " to the extent the lawyer reasonably believes necessary to prevent

> reasonably certain death or substantial bodily harm. " The main effect of

> the proposal would be to allow lawyers to warn about dangerous products.

If

> the association adopts this language, state courts can be expected to go

> along.

>

> But the commission's proposal does not go far enough. If physical harm is

> indeed " reasonably certain " to occur, lawyers should not be merely

> permitted to break confidences; they should have no choice in the matter.

> Failure to warn of impending harm is morally indefensible. A small number

> of states, including Florida and Illinois, now do require warnings in

these

> circumstances, and the association would be wise to urge that all courts

> mandate them.

>

> Confidentiality is important to a lawyer's relationship with a client, but

> it should not be allowed to obscure the higher value of protecting human

> life. Besides, some clients don't deserve much help from the legal ethics

> rules. When a company has marketed a product that can kill or injure and

> its corporate officers, after learning that this harm is reasonably

certain

> to occur, nevertheless refuse to do everything possible to prevent it,

> ethical behavior would seem to require that lawyers act to protect the

> innocent victims, not the unscrupulous client.

>

> Gillers is vice dean and professor at New York University School

of

> Law.

> Copyright 2001 The New York Times Company | Privacy Information

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