The New Rules for Keeping Secrets

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The Rev. Joseph Towle, a priest in the Bronx, N.Y., usually hears confessions, but recently he offered up a jaw-dropping one of his own. Thirteen years ago, a man named Jesus Fornes told Father Towle he had committed a murder, one for which two innocent men had been convicted. Towle disclosed last month that Fornes, now dead, was the killer, and urged that the men--who had served 13 years in prison--be freed.

Towle's bombshell provoked outrage from two directions. To some, it was shocking that a Catholic priest would violate his calling by betraying a penitent. (Towle says Fornes' statement wasn't part of a formal religious confession.) To others, the shock was that a man of God kept silent while two innocent men languished behind bars for a crime they didn't commit.

Time was when the confidential professions were reliably confidential. A lawyer kept your crimes and financial mischief to himself; a priest took your sins to the grave. Even nonprofessionals had codes of confidence: secretaries, clerks and anyone with access to Coke's secret formula or Colonel Sanders' 11 herbs and spices kept a lid on it.

But two sets of professionals who have built their power on centuries of keeping secrets--lawyers and priests--are revisiting that tradition, partly as a way to repair their reputations in a world grown less tolerant of the powerful taking advantage of the powerless. More specifically, they are also fending off the modern reality of lawsuits. The latest evidence: policy changes last week by two very different organizations, the American Bar Association and the Catholic Church.

The A.B.A. had zealously guarded the attorney-client privilege, arguing that confidentiality is necessary for lawyers to provide the best representation. Church doctrine has held that confession can lead to absolution from God--and confidentiality is needed for people to confess their worst deeds. But now each group, while defending the core of its privilege, has taken steps to let their practitioners talk a little more.

The A.B.A. House of Delegates, meeting in Chicago, voted 243 to 184 in favor of a new rule that would allow lawyers to disclose client secrets to prevent "reasonably certain death or substantial bodily harm." The old rules already allowed lawyers to speak out when a client was imminently going to commit a crime. But the new policy lets lawyers speak out even when the potential for harm is not immediate and when the act is not criminal.

The change was prompted in part by the new scenarios lawyers are confronting daily. At one time, the great concern was a client's running out of his lawyer's office brandishing a gun. But today's practitioners have to deal with HIV-positive clients who say they're going to have sex with people and not tell them about their infection, or they may have corporate clients with plans to dump dangerous toxins. It is tempting to think the new rule is just an attempt by lawyers to protect themselves legally, but in fact they may be better off under the old rule: if you are prohibited from blowing the whistle, no one can blame you if you don't. What the new rules offer lawyers is a moral opportunity to sound the alarm about clients bent on doing harm--and of course, an opportunity for good publicity.

Opponents of the reform argue that it distracts lawyers from their primary obligation: rigorously advocating the interests of their clients. But backers say the new policy will force lawyers to weigh their obligations to clients against their larger duty to society. Read between the lines, and you have an implicit acknowledgment that lawyers could do something to improve their image. "There's been a recognition, particularly when there's a danger to life and limb, that lawyers ought not to be legalistic," says Nancy Moore, a Boston University professor of law who helped draft the proposed new rules.

At the same meeting, however, the A.B.A. balked at adopting a companion proposal that would have allowed disclosure of client secrets when the risk of harm is only financial. Under the rejected rule, a lawyer would have been able, for example, to rat on a client who was committing fraud. The measure's critics argued that it would make the loophole too large and would too often put lawyers at odds with their clients. It could also, they warned, harm a client's legal representation by leading the client to hide significant facts from his attorney.

In Boston the archdiocese was making an about-face of its own. The church announced last week that it was supporting a bill in the state legislature that would add priests and other clergy to a list of professionals, including teachers and social workers, who are legally required to report suspected child sex-abuse cases to the authorities.

The Boston church's shift--it opposed the bill a week earlier--came amid a messy sexual-abuse scandal. Bernard Cardinal Law recently admitted, as part of a civil lawsuit against the church by abuse victims, that after he was informed that John Geoghan, a priest, had allegedly molested seven boys, he transferred Geoghan to several other Boston parishes. Geoghan, who retired in 1993 and was defrocked five years later, is accused of molesting at least 70 children. He has pleaded not guilty to the charges.