California's Duty of Confidentiality: A Case Study in Code Interpretation

Abstract

In 1850 David Dudley Field added some language to the Oath of the Canton of Geneva, which he copied into his draft Code of Civil Procedure for New York. His brother, future Justice Stephen Field, deliberately avoided adding this language to his revision of California's Practice Act, though for his own reasons rather than because of the language itself. California adopted Field's language in 1872. In 2014 California clings to a literal interpretation of this language in defense of the state's uniquely conservative rule of confidentiality.

This article traces the history of Field's language: why he added it, how he and his contemporaries thought about confidentiality, how they viewed codes as opposed to statutes in general, and how they viewed interpretation of this language in particular. At the time confidentiality reflected the power lawyers gained when they learned their clients' secrets, and precepts of gentlemanly behavior, which served as a model for certain aspects of lawyers' conduct. At present, lawyers cling to strict standards of confidentiality to minimize the risk of third party suits and to retain a competitive advantage relative to other highly skilled service providers who might perform a large fraction of lawyers' work but who enjoy no legal privilege and who operate under the more liberal confidentiality standard of agency law.

The history of this provision illustrates some important general points. California’s experience shows the risk of arid textualism (not all textualism is). All law is purposive and legal texts cannot be fully understood without considering the purposes texts express and embody. Those purposes are sensitive to time and other elements of context. To focus exclusively on a subset of those purposes is to misunderstand the text and thus to misapprehend the law.

Keywords: Legal Profession, Legal Ethics