The Boundary Claim’s Caveat: Lawyers and Confidentiality Exceptionalism

Abstract

In legal ethics scholarship, the “boundary claim” stands for the idea that lawyers must represent clients zealously but within the bounds of the law. The idea has long been embraced by the legal profession as both a description of — and justification for — the unique moral, social, and political space occupied by lawyers. This Article asserts that this professed commitment to obey the law comes with a caveat: the legal profession has been unwilling to acknowledge that lawyers must comply with laws that require the disclosure of client confidences. In fact, the bar has a fairly extensive history of suggesting or asserting that lawyers are exempt from such laws. This Article traces that history and then considers its significance. Properly located within the state and federal constitutional structures that should form the framework for this assessment, the idea that lawyers are exempt from laws that require disclosure is, in some of its manifestations, really quite radical, raising questions about the role of lawyers in a constitutional democracy that the bar has never satisfactorily addressed.