Professional Medical

Minnesota Law Review Vol. **, No. *, Pg. ** November 1998

**** ********** ** ********* *** School

Professional Secrecy and Its Exceptions:

Spaulding v. Zimmerman Revisited

Roger C. Cramton and Lori P. Knowles

INTRODUCTION

Late in the day of August 24, 1956, in Brandon, Minnesota,

two cars approached each other on country roads. One car,

driven by John Zimmerman, age nineteen, was traveling west;

the second car, driven by Florian Ledermann, age fifteen, was

heading south toward the intersection. There were no stop

signs at the crossing, and sight of approaching traffic was ob-

scured by the mature corn in the surrounding fields.1 The cars

collided, resulting in the deaths of two young persons, one from

each car, and serious injury to nine of the ten other persons in-

volved in the accident.2

David Spaulding, then twenty years old, was one of six oc-

cupants of the Zimmerman car. Three were members of the

Zimmerman family: the driver, John Zimmerman; his brother

Roger C. Cramton is the Robert S. Stevens Professor of Law, Cornell

Law School, Ithaca, NY 14853-4901 (e-mail: *******@***.****.*******.***).

An earlier version of a portion of this article was prepared by Roger C. Cram-

ton in the form of a short essay for a Legal Ethics Conference at Hofstra Uni-

versity Law School, April 6, 1998, and is used here with permission. The au-

thors have benefitted from helpful comments from a number of academic

colleagues, especially William H. Hodes, Robert P. Lawry, John Leubsdorf and

Ted Schneyer.

Lori P. Knowles is an Associate for Law and Bioethics at the Hastings

Center, Route 9D, Garrison, NY 10524 (e-mail: ********@*****************.***).

1. In a newspaper account of the accident, a deputy sheriff was quoted as

stating that the visibility at the crossing was good. See 2 Killed Friday in Car

Collision, PARK REGION ECHO (Alexandria, Minn.), Aug. 26, 1956, at 1. Sur-

viving family members, present at the time, report that high corn impaired

visibility.

2. See id. Our account is assembled from the reported decision, the re-

cord on appeal in the Supreme Court of Minnesota, Spaulding v. Zimmerman,

116 N.W.2d 704 (Minn. 1962) (Nos. 38526 and 38529) [hereinafter Record on

Appeal], a newspaper report of the accident, see supra note 1, and telephone

conversations with surviving parties, family members, and lawyers.

63

64 MINNESOTA LAW REVIEW [Vol. 83:63

James, age twenty-seven; and their father, Edward. Like the

Zimmermans, the three other passengers David Spaulding,

his brother Alan, and a man by the name of Howard Leraas

were employees of a road construction business owned and op-

erated by the Zimmermans. It was just before sundown and

the Zimmermans were driving the Spauldings home from work.

David Spaulding suffered severe injuries: brain concussion,

broken clavicles and a crushed chest. Edward Zimmerman suf-

fered a broken neck and James Zimmerman was killed in the

accident.

The Ledermann vehicle was driven by Florian, age fifteen,

who was driving his father s car on a farm permit. The Leder-

mann family was on its way to the county fair at which

Florian s sister Elaine Ledermann, age twelve, was to partici-

pate in the 4-H Dress Review. The other family members in

the car, all of whom were thrown from it, were Florian s father

John, his mother Pauline, and his two younger brothers, Ben

and Phil. Elaine Ledermann was killed. Her father, John Led-

ermann, lost the use of an arm and thereafter was unable to

work the family farm. Florian Ledermann himself emerged

relatively unscathed physically, although the incident seared

his conscience. The tragic consequences for his family have

been shrouded in silence; Ledermann reports that he was sent

back to school the next week as if nothing had happened and

that the family rarely, if ever, spoke of the accident.3

Spaulding s father brought suit on his behalf against the

drivers and parent-owners of the two vehicles. The three medi-

cal experts who treated David Spaulding did not discover that,

in addition to severe head and chest injuries, Spaulding had

also incurred a life-threatening aneurysm of the aorta, proba-

bly caused by the accident. The physician retained by the de-

fense lawyers discovered and reported this injury and its life-

threatening character to one of the defense lawyers shortly be-

fore the parties were to meet to discuss settlement.4

At the settlement conference, Spaulding s claim was set-

tled for $6,500.5 Spaulding s injuries were not discussed in spe-

cific terms; the defense lawyers, knowing that Spaulding and

his lawyers were unaware of the aneurysm of the aorta,

3. Telephone Interview by Lori P. Knowles with Dr. Florian Ledermann

(Sept. 1997).

4. See Record on Appeal, supra note 2, at 118-20.

5. See Spaulding, 116 N.W.2d at 708.

1998] PROFESSIONAL SECRECY 65

did not disclose this injury or make representations concerning

the scope of Spaulding s injuries. Because Spaulding was a mi-

nor when the settlement was made, his lawyer was required to

petition the court to approve the settlement. The petition in-

cluded only the injuries known to Spaulding and his lawyer,

who had not been told by defendants lawyers of the aneurysm.

On May 8, 1957, sixteen days before Spaulding s twenty-first

birthday,6 the court approved the settlement and dismissed the

case. For nearly two years Spaulding lived with a life-

threatening condition of which he and his family were igno-

rant.

Spaulding v. Zimmerman is one of the great gems of law

teaching a case that rivets the attention of students while en-

couraging in-depth discussion of many of the basic questions

concerning the lawyer s role as advocate and counselor.

Spaulding is extensively discussed in books and articles deal-

ing with legal ethics7 and prominently featured in professional

responsibility casebooks and courses.8 The case also has im-

portant implications for other courses, such as civil procedure,

torts and insurance.

Spaulding teaches important lessons about the law and

ethics of lawyering: First, the unwillingness of lawyers, judges

and the organized profession to talk openly and seriously about

the situations in which threats of harm to third persons justify

a breach of one of the lawyer s most sacred duties, that of con-

fidentiality to client. Second, the reality, again shrouded in

professional and judicial silence, that the adversary role of the

lawyer in litigation arguably permits, and may sometimes re-

quire, a lawyer to behave in an amoral or immoral way. Third,

6. See Record on Appeal, supra note 2, at 15.

7. See, e.g., DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY

149-54 (1988); Stephen L. Pepper, Counseling at the Limits of the Law: An Ex-

ercise in the Jurisprudence and Ethics of Lawyering, 104 YALE L.J. 1545, 1606

(1995).

8. The case is reprinted in at least five professional responsibility

coursebooks. See ROBERT F. COCHRAN, JR. & TERESA S. COLLETT, THE RULES

OF THE LEGAL PROFESSION 65-69 (1996); GEOFFREY C. HAZARD, JR. ET AL.,

THE LAW AND ETHICS OF LAWYERING 5-9 (2d ed. 1994); L. RAY PATTERSON &

THOMAS B. METZLOFF, LEGAL ETHICS: THE LAW OF PROFESSIONAL

RESPONSIBILITY 430-35 (3d ed. 1989); DEBORAH L. RHODE, PROFESSIONAL

RESPONSIBILITY: ETHICS BY THE PERVASIVE METHOD 248-52 (1994); DEBORAH

L. RHODE & DAVID LUBAN, LEGAL ETHICS 249-52 (2d ed. 1995).

66 MINNESOTA LAW REVIEW [Vol. 83:63

the centrality to good lawyering of the professional duty to

communicate legal and factual information to clients so that

they may exercise their decisionmaking authority effectively.

Fourth, the importance of moral dialogue between lawyer and

client about the ends as well as the means of representation,

especially when substantial interests of third persons are

threatened with harm. Fifth, the ubiquity of lawyer conflicts of

interest and the threat they pose to client representation and

to the public interest in just outcomes.9 And finally, the truth

that the duties and obligations of lawyers often find more con-

crete expression in procedural and other law applicable to a

particular situation than they do in the profession s codes of le-

gal ethics. All this and more is implicit in the five page opinion

rendered by the Supreme Court of Minnesota in 1962 under the

caption of Spaulding v. Zimmerman. After analyzing

Spaulding in light of its historical context, this article will ex-

plore these issues and consider their implications, both then

and now.

Why revisit Spaulding at this time? We have three rea-

sons. The first is that nearly every American jurisdiction has

extensively considered the scope of exceptions to the profes-

sional duty of confidentiality since 1983; in that year the

American Bar Association recommended adoption of a set of

rules that substantially narrowed the discretion or obligation

of a lawyer to disclose confidential client information to pre-

vent harm to third persons.10 The confidentiality provisions of

state ethics codes that have emerged from this state-by-state

review give greater respect to third-party interests than do the

comparable provisions of the Model Rules of Professional Con

duct.11 More recently, the American Law Institute s proposed

9. In Spaulding, for example, the reality that defense counsel was se-

lected, directed and paid by the liability insurer created a risk that defense

counsel might ignore the insured, deferring to the economic interest of the in-

surer, who controlled repeat business.

10. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1983) [hereinaf-

ter MODEL RULES]. The broader disclosure provisions of the draft rules devel-

oped by the Kutak Commission, rules generally reflecting prior law, were re-

peatedly narrowed throughout the drafting process, culminating in a rejection

by the House of Delegates in 1983 of any permissive disclosure of client fraud.

See Ted Schneyer, Professionalism as Bar Politics: The Making of the Model

Rules of Professional Conduct, 14 L. & SOC. INQUIRY 677, 700-20 (1989).

11. See Attorneys Liability Assurance Society, Inc., Ethics Rules on Cli-

ent Confidences, reprinted in THOMAS D. MORGAN & RONALD D. ROTUNDA,

1998 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY (1998)

1998] PROFESSIONAL SECRECY 67

Restatement of the Law Governing Lawyers,12 in considering

confidentiality and its exceptions, has provided for broader dis-

closure when threats to life and bodily injury are at stake than

is provided by current law in any U.S. jurisdiction.13 Under the

proposed Restatement provision, the defense lawyers in

Spaulding would be permitted to reveal the plaintiff s life-

threatening condition even if the individual defendants and the

insurers refused to do so.

We celebrate this recent and lively discussion of the moral

aspects of lawyer conduct. Exploration in court rules, judicial

decisions and professional commentary of the appropriate lim-

its on lawyer secrecy and adversary zeal is likely to lead to

greater agreement and candor on the hard issues that arise

when a lawyer learns during the course of representation that

unless some step is taken, perhaps including the extreme one

of client betrayal, a third person will suffer serious harm.

Our second reason for writing this article is that we hope

to contribute to the debate by offering a concrete proposal and

adding some thoughts on a neglected subject: the effect of a

lawyer s voluntary disclosure of confidential client information

to protect third-party interests on the client s subsequent as-

sertion of the attorney-client privilege. We argue that a law-

yer s permissible disclosure under an exception to the profes-

sional duty of confidentiality does not waive the client s

attorney-client privilege unless the client, after consultation,

has consented to the disclosure. A prosecutor or litigant may

not use the lawyer s testimony against the client in a subse-

quent proceeding because the client retains the attorney-client

privilege in the underlying communication.

Our third reason for revisiting Spaulding is that we have

some new information concerning it. We have attempted to dig

beneath the surface of the brief factual statement in the

Spaulding opinion to discover what really happened. What

was the relationship between the victim, David Spaulding, and

[hereinafter ALAS Memorandum]. This tabulation of exceptions to confiden-

tiality of state ethics rules indicates, for example, that at least 40 jurisdictions

have rejected the ABA position that a lawyer may not disclose confidential cli-

ent information to prevent a criminal fraud likely to result in financial injury

to the property of another.

12. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS (Proposed

Official Draft 1997) [hereinafter RESTATEMENT OF LAW GOVERNING

LAWYERS]. The confidentiality provisions, sections 111-117B, were given final

approval at the ALI annual meeting on May 11-12, 1998.

13. See id. at 117A.

68 MINNESOTA LAW REVIEW [Vol. 83:63

the driver of the car in which he was a passenger, John Zim-

merman? What were the circumstances of the accident? Were

the individual defendants consulted by their lawyers concern-

ing the action to be taken with respect to the information that

the lawyers possessed concerning the threat to David Spauld-

ing s life? Were the liability insurers who had retained those

lawyers consulted? What happened when the settlement was

set aside and the case remanded for a new trial? These ques-

tions will be obvious ones to readers who are familiar with the

Spaulding case; their pertinence will become apparent to oth-

ers after we analyze the holding of the case.

I. ANALYSIS OF THE SPAULDING CASE14

David Spaulding s famous lawsuit was only one of several

arising out of the 1956 intersection collision in Brandon, Min-

nesota. Initially, Spaulding was represented by Richard A.

Roberts, a young lawyer at the beginning of his career.15 Zim-

merman s insurer selected Norman V. Arveson, an experienced

trial lawyer, as Zimmerman s defense counsel; Chester G. Ro-

sengren acted in the same capacity for the Ledermanns and

their insurer.

After the accident, David Spaulding was treated for his in-

juries by his family physician, Dr. James H. Cain. Because of

the severity of David s injuries, he was also examined by two

specialists: Dr. John F. Pohl, an orthopedist, who concluded on

January 3, 1957 from x-rays of David s chest that heart and

aorta are normal; and Dr. Paul S. Blake, a neurologist.16 Re-

ports from these physicians contained no finding of an aneu-

rysm of the aorta.

14. Unless otherwise indicated, the information in the following section is

found in the reported decision, Spaulding v. Zimmerman, 116 N.W.2d 704

(Minn. 1962), or the Record on Appeal, supra note 2.

15. Telephone Interview by Lori P. Knowles with Justice Walter Rogosh-

eske (Retired) (Sept. 1997).

16. Dr. Blake makes an appearance in another well-known case in the

professional responsibility field. He was apparently the neurologist charged

with medical malpractice in the case within the case aspect of Togstad v. Ve-

sely, Otto, Miller, & Keefe, 291 N.W.2d 686 (Minn. 1980) (en banc), a legal

malpractice case against a lawyer who, in a preliminary interview declining to

take the case, gave careless advice about the merits of client s medical mal-

practice claim. The coincidence with Spaulding is even more extraordinary

because Togstad also involves a further harm occurring during the treatment

of an aortic aneurysm.

1998] PROFESSIONAL SECRECY 69

In preparation for trial, Spaulding was also examined by

Dr. Hewitt Hannah, a neurologist retained by the defense. On

February 26, 1957, approximately one week prior to the trial

date, Dr. Hannah reported the following to Arveson, the lawyer

for John Zimmerman:

The one feature of the case which bothers me more than any other . . .

is the fact that this boy of 20 years of age has an aneurysm, which

means a dilatation of the aorta and the arch of the aorta. . . . Of

course an aneurysm or dilatation of the aorta in a boy of this age is a

serious matter as far as his life. This aneurysm . . . might rupture

with further dilatation and this would cause his death.17

Dr. Hannah, lacking a pre-accident x-ray, could not deter-

mine whether the aneurysm was caused by the accident, but

later examinations indicated that it was one of the serious inju-

ries suffered by Spaulding in the accident.18 Disclosure of the

aneurysm would have exposed the liability insurers to in-

creased loss.

The individual defendants were not informed by their law-

yers of Spaulding s life-threatening condition, nor were they

consulted about whether it should be disclosed prior to settle-

ment. Dr. Hannah s report was mentioned to at least one of

the insurers,19 but the record is unclear whether the defense

lawyers meaningfully consulted the insurance representatives

as to whether Spaulding s condition should be disclosed to him

prior to settlement. The defense lawyers probably made the

decision not to disclose on their own.

The parties apparently did not contemplate any recovery

beyond the policy limits. Two circumstances support this con-

clusion. First, the accident involved residents of a rural farm

area with very traditional values at a time when attitudes to-

ward litigation were very different from today s. Second, mem-

bers of the Ledermann and Zimmerman families were in the

position of being both plaintiffs and defendants to the claims of

each other. In 1957, doctrines of contributory and imputed

negligence, which operated as a complete bar, posed risks to

the recovery of members of one family against the other; jurors

might determine that the claims of members of both families

were barred or uphold the claims of one family against the

17. Spaulding, 116 N.W.2d at 707 (quoting trial court s memorandum).

18. The trial court assumed for the purpose of its decision that the aneu-

rysm was caused by the accident. See id. at 708. Dr. Cain s review of x-rays

taken immediately after the accident and some time later indicates that the

aneurysm developed after the accident. See id.

19. See Record on Appeal, supra note 2, at 87.

70 MINNESOTA LAW REVIEW [Vol. 83:63

other.20 Under these circumstances, the parents in each family

were reluctant to make claims against the personal assets of

the other family for a number of reasons, including fear of re-

ciprocal exposure.21

The claim of David Spaulding was less problematic on the

merits than those of the accident victims related to their driv-

ers. First, Spaulding could not be charged with contributory or

imputed negligence because he was a non-negligent passenger

who had no family relationship to the owner or driver of either

vehicle. Second, Minnesota did not have a guest statute re-

stricting the liability of a passenger to an auto host, and there-

fore his claim did not rest upon proof of gross negligence or

recklessness by the host, Zimmerman.22

The fact that David had a life-threatening condition was

never communicated to him or his family by the defense attor-

neys, the defendants, or Dr. Hannah. The lawyers for the par-

ties conducted settlement negotiations in which no mention of

the aneurysm was made. Nor did the defense lawyers make

any statements at the settlement conference concerning

Spaulding s specific injuries.

At the conference, held the day before the trial was sched-

uled to begin, the various claims involving the Zimmerman and

Ledermann families and their liability insurers were settled for

a total of approximately $40,000 in insurance payments to the

victims.23 At that time, the wrongful death limit in Minnesota

was $15,000 and it was not uncommon for auto insurance to

have total accident coverage of $50,000 or less. David

Spaulding s claim was settled for $6,500 and, because Spauld-

ing was a minor, a petition requesting court approval of the

20. For a discussion of contributory and imputed negligence, see W. PAGE

KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 65, at 451-62

(5th ed. 1984) (contributory negligence as a complete bar to recovery prior to

advent of comparative fault regimes in most states); id. 73, at 522-27 (negli-

gence of driver imputed to family member in some jurisdictions).

21. Defendants argument on appeal that insurance limits as well as

physical injuries formed the basis for settlement supports our view that set-

tlement discussions were conducted on the assumption that claimants recov-

ery would be within the limits of the policies. Spaulding, 116 N.W.2d at 707,

711; see also Record on Appeal, supra note 2, at 86.

22. See Milkovich v. Saari, 203 N.W.2d 408 (Minn. 1973) (en banc) (hold-

ing that Minnesota, which has no guest statute, will apply Minnesota law to

an action in its courts between an Ontario passenger and driver who were in-

volved in an accident in Minnesota; the Ontario statute would have required

proof of gross negligence).

23. Telephone Interview with Dr. Florian Ledermann, supra note 3.

1998] PROFESSIONAL SECRECY 71

the

settlement was filed by Roberts, Spaulding s lawyer. A copy of

the petition was sent to the defense lawyers.

Almost two years after the aneurysm was discovered by

the defense medical expert, Dr. Hannah, David Spaulding was

required to have a medical examination in connection with his

military reserve obligations. He returned to Dr. Cain, his fam-

ily physician, for this purpose. On January 24, 1959, Dr. Cain

discovered the aortic aneurysm and made arrangements for

immediate corrective surgery by a specialist. The surgery re-

paired the aneurysm, but Spaulding suffered permanent and

severe speech loss, probably as a result of the corrective treat-

ment.

Spaulding, now an adult, brought the present proceeding

to set aside the earlier settlement, initially arguing mutual

mistake of fact. The defense lawyers, by producing Dr. Han-

nah s report, established that there had been no mutual mis-

take of fact, since at the time of settlement they knew of the in-

jury of which plaintiff was ignorant. Spaulding s amended

complaint then relied on fraudulent concealment and duty to

disclose to the court.

In response to the fraud claim, the defense lawyers pro-

duced evidence to the effect that there had been no discussion

of specific injuries during the settlement conference. Since

defendants and their lawyers had made no false statements to

induce the settlement, the trial court found, it could not be set

aside on grounds of fraud. The trial court, without citing or dis-

cussing applicable ethics rules, concluded that the defendants

lawyers acted in good faith, 24 that there was no fraudulent

concealment, and that, because of the adversary relationship,

no rule required or duty rested upon defendants or their rep-

resentatives to disclose [their knowledge of the aneurysm]. 25

The adversary relationship, however, had ended when the

petition for approval of the settlement was presented to the

court for the required approval. The defendants concealment

from the court at the time of the petition provided a discretion-

ary basis for setting aside the settlement: [D]efendants failure

to act affirmatively [to correct the factual inaccuracy of the pe-

tition by supplying information they alone had concerning the

extent of plaintiff s injuries], after having been given a copy of

24. The trial court s memorandum stated: There is no doubt of the good

faith of both defendants counsel. Spaulding, 116 N.W.2d at 708.

25. Id.

72 MINNESOTA LAW REVIEW [Vol. 83:63

[the petition] . . ., can only be defendants decision to take a cal-

culated risk that the settlement would be final. 26

The Minnesota Supreme Court, after quoting extensively

from the trial court s memorandum decision, affirmed the order

setting aside the settlement. Under Minnesota law, the court

held, the trial court had discretion to set aside its approval of a

settlement involving a minor s personal injury when it was

shown that the minor had sustained injuries not known or con-

sidered by the court. The only reference to the legal or ethical

obligations of the defense lawyers under the circumstances was

a cryptic sentence: While no canon of ethics or legal obligation

may have required [defendants lawyers] to inform plaintiff or

his counsel . . ., or to advise the court therein, it did become ob-

vious to them at the time, that the settlement then made did

not contemplate or take into consideration the disability de-

scribed. 27 The case was remanded for a new trial.

A generation of law teachers and students has discussed

the many issues raised by Spaulding v. Zimmerman on the ba-

sis of the limited facts and holdings contained in the trial

court s memorandum and the state supreme court s brief af-

firming opinion. Principal emphasis is usually placed on the

tension between the obligations of the lawyer s adversary role

and the moral obligations of an actor to protect third persons

from harm: is a lawyer acting for a client required to maintain

a client s confidential information even if doing so will risk the

sacrifice of an innocent human life?

Our discussion of the case will consider both this and the

following questions: (1) How would the case have been decided

if Spaulding had been twenty-one rather than twenty years old

at the time of settlement or if the age of majority in Minnesota

had already been lowered to eighteen?28 (2) Was the court cor-

rect, as of 1957, in stating that no canon of ethics or legal obli-

gation required defendants or their lawyers to inform

Spaulding or his counsel of Spaulding s life-threatening injury?

Under the ethics rules or other law, was disclosure permitted

26 . Id.

27 . Id. at 710.

28. Minnesota lowered the age of majority from 21 to 18 years of age in

1973. Act of May 24, 1973, ch. 725, 84, Minn. Laws 2082 (effective June 1,

1973).

1998] PROFESSIONAL SECRECY 73

even if not required? (3) Would the same answer be given un-

der the current law of lawyering and civil procedure? (4) Were

the defense lawyers, in 1957 or today, required to consult with

their clients before making the decision not to disclose? If so,

what options are open to a defense lawyer faced with the situa-

tion created by Dr. Hannah s medical report? And (5), a related

question, who was (or were) the client (or clients) that the de-

fense lawyers should have consulted?

A. CONCEALMENT FROM THE COURT RESULTING IN RECISSION

OF A MINOR S SETTLEMENT

Viewed superficially, the court reaches a just result in

Spaulding: David Spaulding is permitted to recover for the full

extent of his injuries.29 After his case was remanded, a new

and larger settlement of unknown amount was entered into.30

Yet, there is also undeniably a dark side to Spaulding. The de-

cision does not recognize any legal or ethical obligation of can-

dor or fairness, on the part of a settling party or that party s

lawyer, to an opposing party in a settlement negotiation, even

in the extreme situation in which innocent human life is at

stake. Worse yet, the holding necessarily implies that a law-

yer, absent client consent, cannot volunteer information to pro-

tect the opposing party s life without risking professional disci-

pline. It is these harsh implications that make Spaulding such

a gut-wrenching case for law students.

Judge Rogosheske, the trial judge in Spaulding,31 stated in

his memorandum decision that the issue is exceedingly close,

[which] can best be underscored by disclosing the Court s vacil-

lation during deliberations. 32 The usual grounds for setting

aside a contract mutual mistake and fraud were not pres-

29. Because the settlement was set aside and the case remanded for a

new trial, Spaulding was given the opportunity for a new assessment of the

damages he suffered. The result was a new settlement for an additional (but

unknown) amount.

30. Telephone Interviews by Lori P. Knowles with Richard L. Pemberton

and Robert Gislason (Sept. 1997).

31. Judge Rogosheske had been elevated to the Minnesota Supreme Court

by the time the Spaulding case reached that court; as Justice he did not par-

ticipate in the Supreme Court s decision. However, the high court may have

been reluctant to reverse the earlier decision of a new colleague, and therefore

Justice Rogosheske s presence on the court could have influenced the outcome

of the case on appeal.

32. Record on Appeal, supra note 2, at 129 (Judge Rogosheske s memo-

randum opinion).

74 MINNESOTA LAW REVIEW [Vol. 83:63

ent. Instead, Spaulding s failure to learn the full scope of his

injuries was due to the ignorance or incompetence of his law-

yer, Roberts, who failed to use available rules of discovery to

obtain Dr. Hannah s report.33 In the absence of a discovery re-

quest, defendants were under no procedural obligation to pro-

vide Dr. Hannah s report to the opposing party.

Several factors may have contributed to the failure of

Spaulding s lawyer to request Dr. Hannah s report. First, Rob-

erts was a young lawyer at the beginning of his legal career,

and his inexperience may have led him not to request the re-

port or question Arveson concerning its content.34 Second, as

Roberts later stated in an affidavit, he inferred from defen-

dants silence concerning Dr. Hannah s report that it merely

repeated the information he had obtained from Spaulding s

treating physicians.35 And third, requesting the report might

have led to disclosure of a report of one of the plaintiff s physi-

cians that could have created a risk the settlement would not

obtain judicial approval.36

Having canvassed and rejected the possible contractual

and procedural arguments for vacating the settlement, Judge

Rogosheske grasped at the slim thread of plaintiff s argument

that the defendants had a legal and moral duty to disclose the

33. The trial court s memorandum mentioned the failure of plaintiff s

counsel to use available rules of discovery to obtain Dr. Hannah s report; and

later referred to plaintiff s ignorance or . . . incompetence. Spaulding v.

Zimmerman, 116 N.W.2d 704, 709 (Minn. 1962); Record on Appeal, supra note

2, at 131, 133.

34. Telephone Interview with Justice Walter F. Rogosheske (Retired), su-

pra note 15.

35. Record on Appeal, supra note 2, at 90.

36. The Record on Appeal reveals that Dr. Blake, one of the physicians

who examined Spaulding before the trial, submitted a report to Roberts stat-

ing that the case should not be settled for another year or so, until the extent

of Spaulding s brain injuries could be determined. Record on Appeal, supra

note 2, at 38-39. If the trial judge had received this report, he might not have

approved the settlement, which either the Spaulding family, or Roberts, or

both, wanted to enter into in March 1957. Roberts failure to request a copy of

Dr. Hannah s report was clearly a tactical error which left him open to a claim

for professional negligence, a conflicting interest with his client that explains

his replacement as Spaulding s attorney shortly after the proceeding to set

aside the earlier judgment was filed. On appeal, defendants argued that the

plaintiff s concealment of Dr. Blake s report should bar Spaulding s effort to

set aside the settlement. The court rejected the argument, holding that an-

other report prepared by Dr. Blake, which was submitted to the court, ade-

quately indicated the uncertainty concerning the extent of Spaulding s brain

injuries. See Spaulding, 116 N.W.2d at 710-11.

1998] PROFESSIONAL SECRECY 75

aneurysm to the court. 37 Since Spaulding was a minor at the

time of the accident, the trial court had to approve any settle-

ment made on his behalf; once the parties had agreed, they

were no longer in an adversary relationship. Thus, although

the settlement petition was prepared and submitted by Rob-

erts, Spaulding s lawyer, it was treated as a joint petition of

both parties.38 In this circumstance, the defense lawyers, as of-

ficers of the court, took a calculated risk that the settlement

would be set aside when they concealed from the court the true

facts concerning the extent of the minor s injury. The court ex-

ercised its discretionary powers and vacated the settlement on

this narrow ground.

Aside from a passing critique of Roberts for failing to dis-

cover the information contained in the defense medical report,

Judge Rogosheske did not criticize the lawyers involved or

elaborate on their legal or ethical obligations to others. Al-

though Judge Rogosheske described the defense lawyers con-

cealment of the aneurysm as less than full performance of

their duties to the court, he also went out of his way to state

that the defense lawyers had acted in good faith. 39 The risk

that their failure to inform the court of the actual injuries

would be discovered had in fact materialized, with the result

that the court had discretion to set aside the settlement. The

court viewed the defense lawyers decision to conceal the medi-

cal report not as a violation of legal duty to an opposing party,

but rather as a tactical or strategic move similar to advising a

client in a particular situation concerning efficient breach

that breaking a contract in a particular situation would be less

costly than performing.40

Judge Rogosheske s memorandum decision makes it clear

that he would have reached a contrary conclusion were it not

for Spaulding s minority status:

By reason of the failure of plaintiff s counsel to use available rules of

discovery, plaintiff s doctor and all his representatives did not learn

that defendants and their agents knew of [the aneurysm s] existence

and possible serious consequences. Except for the character of the

concealment in the light of plaintiff s minority, the Court would, I be

37. Record on Appeal, supra note 2, at 108.

38 . See Spaulding, 116 N.W.2d at 709.

39 . Id.

40. For discussion of the concept of efficient breach, see RICHARD A.

POSNER, ECONOMIC ANALYSIS OF LAW 131-34, 142, 153 (5th ed. 1998) (arguing

that contract law in general [is] an inappropriate area in which to enforce

moral (insofar as they may be distinct from economic) principles ).

76 MINNESOTA LAW REVIEW [Vol. 83:63

lieve, be justified in denying plaintiff s motion to vacate, leaving him

to whatever questionable remedy he may have against his doctor and

against his lawyer.

To hold that the concealment was not of such character as to re-

sult in an unconscionable advantage over plaintiff s ignorance or mis-

take, would be to penalize innocence and incompetence and reward

less than full performance of an officer of the Court s duty to make

full disclosure to the Court when applying for approval in minor set-

tlement proceedings.41

One is left with the inescapable conclusion that, had David

Spaulding been sixteen days older when the court approved the

settlement, or had the events occurred after Minnesota had

lowered the age of majority to eighteen,42 he would have been

left to recover for his harm from his lawyer and doctor for pos-

sible professional negligence.43

B. THE LAWYER S DUTY NOT TO DISCLOSE CONFIDENTIAL

CLIENT INFORMATION TO AN OPPOSING PARTY

The opinion in the Spaulding case states a bare conclu-

sion that an advocate has no legal or ethical duty to disclose

confidential client information to the opposing party but fails

to state underlying principles, or cite judicial decisions or rules,

in support of this proposition. The court s silence and lack of

reasoning stimulate law students to reflect on the premises of

the adversary system and the content of applicable rules of pro-

fessional conduct and of civil procedure.

41. Spaulding, 116 N.W.2d at 709.

42. Spaulding was born on May 24, 1936 and the settlement agreement

was approved by the court on May 8, 1957, 16 days before his 21st birthday.

Record on Appeal, supra note 2, at 15.

43. If Spaulding had been an adult at the time the settlement was ap-

proved, he (or, if he had died of the unrevealed aneurysm, his family) would

have had no legal recompense other than a possible action for professional

malpractice against lawyer Roberts or Spaulding s physicians. An adult s set-

tlement of a personal injury claim bars any future claim arising out of the

same facts. See RESTATEMENT (SECOND) OF JUDGMENTS 18-20 (1982) (claim

preclusion). A subsequent fraud claim would be available only if the settle-

ment was induced by material false representations and detrimental reliance,

which was not the case in Spaulding. Moreover, any professional malpractice

claim under the circumstances would have been problematic in terms of liabil-

ity and difficult to prosecute for practical reasons. It is not clear that the facts

would have supported a malpractice claim against Spaulding s physicians.

Moreover, a claim against any of the professionals involved would have de-

pended upon the plaintiff finding a lawyer willing to take the case and the

availability of experts willing to testify concerning professional negligence

both uncertain prospects in rural Minnesota in the 1950s.

1998] PROFESSIONAL SECRECY 77

1. The lawyer s adversary role

The adversary system posits that the advocate advances

the objectives of a client within the bounds of the law. 44 The

premises underlying one longstanding conception of the law-

yer s role are frequently summarized as the principles of parti-

sanship and moral non-accountability.45 Partisanship, often re-

ferred to as zeal, is expressed in a lawyer s duty to advance a

client s goals by committed and diligent effort. Doing so in-

volves indifference or opposition to the interests of opposing

parties and witnesses. At its extreme, total commitment to cli-

ent extends to counseling functions as well as litigation, and

involves treating those other than the client as strangers, if not

enemies. The lawyer becomes a single-minded mercenary, a

hired gun.

Moral non-accountability, sometimes referred to as moral

neutrality, reflects the proposition that a lawyer, acting within

the role contemplated by the adversary process, is only doing

what the lawyer is supposed to be doing in assisting a client to

achieve a desired objective. If the client s goals, and the means

chosen to advance them, are lawful, the neutrality proposition

asserts that the lawyer should not be subject to moral criticism

even though the goal or the means employed are viewed by

others as immoral and would be so viewed by the lawyer him-

self in the lawyer s off-duty life.46

44. Canon 15 of the ABA Canons of Professional Ethics stated that the

great trust of the lawyer is to be performed within and not without the bounds

of the law. CANONS OF PROFESSIONAL ETHICS Canon 15 (1908). A similar

formulation is part of the Lawyer s Oath that is traditionally used in bar ad-

mission ceremonies in a number of states. Canon 7 of the ABA Model Rules of

Professional Conduct was entitled: A Lawyer Should Represent a Client

Zealously Within the Bounds of the Law. See also MODEL CODE OF

PROFESSIONAL RESPONSIBILITY Ethical Considerations 7-1 to 7-3 (1969).

45. Leading discussions of the premises of the adversary role include:

Luban, supra note 7; Stephen L. Pepper, The Lawyer s Amoral Ethical Role: A

Defense, A Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613;

Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66

CAL. L. REV. 669 (1978); Murray L. Schwartz, The Zeal of the Civil Advocate,

1983 AM. B. FOUND. RES. J. 543.

46. Ted Schneyer persuasively argues that the standard conception of

adversary representation advanced by some academic writers is only one of

several competing visions of the lawyer s role, not the only conception permis-

sible under ethics codes. The standard conception fails to take account of the

degree of discretion conferred on lawyers by ethics rules and other law. See

Ted Schneyer, Moral Philosophy s Standard Misconception of Legal Ethics,

1984 WIS. L. REV. 1529, 1534-43; Ted Schneyer, Some Sympathy for the Hired

Gun, 41 J. LEGAL EDUC. 11 (1991). Schneyer asks what it means operation-

78 MINNESOTA LAW REVIEW [Vol. 83:63

Under this standard conception of total commitment to cli-

ent within the bounds of law, the strategic decision not to dis-

close Spaulding s life-threatening condition to him merely in-

volves an adversary taking advantage of the incompetence or

inexperience of Spaulding s lawyer. The adversary system

cannot operate effectively, it is argued, if parties in civil litiga-

tion are protected against the failures of their lawyers by any-

thing other than malpractice liability on the part of the careless

lawyer.47

The adversary system excuse provides a moral justifica-

tion for behavior that in other contexts might be viewed as im-

moral. The lawyer s moral universe is simplified by allowing

the lawyer to say, I was only doing my job. This attempt to

justify amoral or immoral lawyer conduct has been subject to

justifiable criticism, and extreme versions of it are unsound for

a number of reasons.48 Despite this criticism, the prevalent

adversary ethic means that a lawyer may not disclose confiden-

tial client information to an opposing party unless doing so

would advance the client s interests, the situation falls within

an established exception to the lawyer s professional duty of

confidentiality, or the client consents to the disclosure. The

question even arises, as the defense lawyers argued in Spauld-

ing, whether the relevant ethical rules required them to remain

silent concerning the risk to Spaulding s life.49

ally to be immune from moral criticism: by whom, in what contexts, and with

what consequences? As a practical matter, recognition of moral immunity of a

lawyer when acting in the professional role is likely to be limited to those in

the legal profession who subscribe to this conception of the lawyer s role.

47. See, e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962) (dis-

missing FELA claim for failure of plaintiff s lawyer to attend a pretrial confer-

ence because the parties were bound by the acts or omissions of their law-

yers any other notion would be wholly inconsistent with our system of

representative litigation. ).

48. For an elaboration of the arguments, see supra notes 45-46 and mate-

rials cited therein; see also Andrew L. Kaufman, A Commentary on Pepper s

The Lawyer s Amoral Ethical Role, 1986 AM. B. FOUND. RES. J. 651; David

Luban The Lysistratian Prerogative: A Response to Stephen Pepper, 1986 AM.

B. FOUND. RES. J. 637.

49. See Record on Appeal, supra note 2, at 132. The Dead Bodies Case is

another much-discussed situation raising this issue. Lawyers for a murder

defendant learned from him that he had also killed two young women and

hidden their bodies in remote locations. The lawyers confirmed his story by

finding and observing the bodies. They remained silent in response to in-

quiries from a grieving parent concerned about the missing daughter. The de-

tails later became public when, in connection with an insanity defense, the

defendant described the series of murders in his testimony. A huge public

outcry ensued. Criminal charges, for violating a New York law requiring a

1998] PROFESSIONAL SECRECY 79

2. The rules of professional ethics in 1957 and today

In Minnesota, as in other states, the Canons of Profes-

sional Ethics (as amended from time to time) provided the

framework for determining the propriety of professional con-

duct at the time of the Spaulding settlement in 1957.50 The

Canons were expressed in general language of professional

duty and morality. Much more than today s lawyer codes, they

mingled the minimum obligations required to avoid profes-

sional discipline with the morality of aspiration.51 Under this

regime, no client or lawyer crime or fraud was involved in fail-

ing to disclose the content of Dr. Hannah s report.52

decent burial and a report of deaths that occur without medical attention,

were brought against one of the lawyers. The dismissal of the criminal

charges was affirmed on appeal. See People v. Belge, 359 N.E.2d 377 (N.Y.

1976) (per curiam). The lawyers failure to disclose was found to be the re-

quired response under state ethics rules. See N.Y. State Bar Ass n Comm. on

Prof. Ethics, Op. 479 (1978).

50. The American Bar Association Canons of Professional Ethics, initially

adopted by the ABA in 1908, provided ethical guidance to state courts ruling

on lawyer conduct until they were displaced in 1970 by widespread state adop-

tion of the ABA Model Code of Professional Responsibility. The Canons are

reprinted in several compilations of standards governing the professional con-

duct of lawyers. See THOMAS D. MORGAN & RONALD D. ROTUNDA, 1998

SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY 616-28 [hereinafter

MORGAN & ROTUNDA STANDARDS]. The Canons were expanded by amend-

ment from 1908 to 1969. A provision dealing directly with a lawyer s duty to

maintain confidentiality of client information was first adopted in 1928. ABA

CANONS OF PROFESSIONAL ETHICS Canon 37 (1928).

51. Scholars have frequently commented on the evolution of the profes-

sion s codes from general language, often cast in moral and aspirational terms,

to a quasi-criminal code of professional discipline. The initial step was taken

in 1969 when the ABA Model Code of Professional Responsibility separated

ethical considerations from disciplinary rules. MODEL CODE OF

PROFESSIONAL RESPONSIBILITY (1969). The 1983 ABA Model Rules of Profes-

sional Conduct continued the de-moralization and legalization of the law-

yer codes under the leadership of Professor Geoffrey C. Hazard, Jr., the re-

porter on the ABA s Model Rules project. Professor Hazard later served as

Director of the American Law Institute during the lengthy period of develop-

ment of the ALI s Restatement of the Law Governing Lawyers. For discussion

of this evolution of ethics codes and Professor Hazard s role in it, see David

Luban & Michael Millemann, Good Judgment: Ethics Teaching in Dark

Times, 9 GEO. J. LEGAL ETHICS 31, 41-53 (1995). Although ethics in the

sense of professional obligation was more sharply distinguished from law in

the 1950s than it is today, it is worth emphasizing that the mandatory duties

stated in the Canons were intended to, and did, serve as the basis for profes-

sional discipline.

52. One could argue that Zimmerman, having put Spaulding in peril by

his driving, had an affirmative obligation to protect him from further harm.

See infra notes 81-87 and accompanying text.

80 MINNESOTA LAW REVIEW [Vol. 83:63

Putting aside permissive provisions dealing with persuad-

ing a client to do the right thing, or seeking withdrawal if the

client did not,53 the Canons contained three provisions relating

to disclosure of information to an adversary or third party:

Canon 37 required a lawyer to preserve his client s confi-

dences, a duty that was modified only by permission to dis-

close either the announced intention of a client to commit a

crime or information necessary to defend the lawyer when ac-

cused by his client. Moreover, the warm zeal required by

Canon 15 was qualified by the obligation to avoid fraud and

chicane and an appeal to the lawyer to follow the dictates of

conscience. Finally, Canon 41 required rectification of fraud

or deception . . . unjustly imposed upon a court or a party. Ju-

dicial decisions required a lawyer to take reasonable steps to

prevent a prospective client fraud at the risk of civil liability or

other sanctions, suggesting that silent withdrawal was an in-

sufficient response and disclosure was sometimes required.54

Thus, under the Canons, the duty of confidentiality was over-

ridden by a strong countervailing duty of disclosure in various

circumstances.

The Spaulding case holds that the defense lawyers had

disclosure obligations to the trial court when the settlement

was made, but solely because Spaulding was a minor at the

time.55 However, the effort by Minnesota law to protect a mi-

53. Canon 15 stated that a lawyer must obey his own conscience and not

that of his client. Canon 22, dealing with candor and fairness to the court

and other lawyers, stated that the lawyer was an officer of the law

charged . . . with the duty of aiding in the administration of justice. Canon 44

permitted withdrawal when the client insists upon an unjust or immoral

course in the conduct of his case.

54. The sparse case law supporting this proposition primarily dates from

the period following the shift in 1970 from the Canons to the Model Code of

Professional Responsibility. See, e.g., SEC v. National Student Mktg. Corp.,

457 F. Supp. 682 (D.D.C. 1978) (requiring a lawyer to take reasonable steps to

prevent a client fraud on investors in an injunction proceeding by the SEC,

accompanied by settlement of contemporaneous private civil actions); Roberts

v. Ball, Hunt, Hart, Brown, & Baerwitz, 128 Cal. Rptr. 901 (Cal. Ct. App.

1976) (complaint stating that a lawyer omitted a material fact from a legal

opinion directed to a person with whom the client sought a loan stated a cause

of action for negligent misrepresentation). See generally Geoffrey C. Hazard,

Jr., Rectification of Client Fraud: Death and Revival of a Professional Norm,

33 EMORY L.J. 271 (1984); infra note 174 (citing caselaw).

55. Spaulding v. Zimmerman, 116 N.W.2d 704, 709-10 (Minn. 1962). An

analogous situation in which professional rules require disclosure to a court of

information adverse to a client s interest is one in which a lawyer seeks ex

parte relief affecting third persons. See MODEL RULES, supra note 10, Rule

3.3(e) (requiring candor to the tribunal in ex parte proceedings).

1998] PROFESSIONAL SECRECY 81

nor s interests through the mechanism of court approval of set-

tlement does not extend to adult litigants who settle their per-

sonal injury claims.56 Spaulding does not attempt to explain

the moral principles or societal interests that justify disclosure

to the court but not disclosure to the person whose life is in

jeopardy. Such a distinction cannot be based on general moral

principles, but only on an adversary system justification that

demands a greater degree of candor to the court than to an op-

posing party.57 So long as the proceeding is adversary in char-

acter and an application to the court is not involved, a party

and the party s lawyer may give preference to their own finan-

cial interests over the opposing party s interest in survival.

Today, Minnesota is one of the forty-two jurisdictions that

base their lawyer code on a version of the 1983 Model Rules of

Professional Conduct.58 If the Spaulding case arose in Minne-

sota under the Model Rules, Spaulding would be treated as an

adult and no court approval of the parties private settlement

would be required. Therefore, the question of candor to the

court raised by treating the petition for approval as a joint ap-

plication of both parties would not arise. Although Minnesota,

like most other states, has broadened the exceptions to confi-

dentiality beyond the narrow confines of ABA Model Rule

1.6(b), disclosure to protect third-party interests is permitted

only to prevent a client crime or fraud, or to rectify a prior cli-

ent crime or fraud in which the lawyer s services have been

used.59 Because there is no client crime or fraud on the

Spaulding facts, disclosure would not be permitted under the

literal text of Minnesota s current ethics code.60

56. See supra note 43.

57. The distinction between candor to the court and candor to a third per-

son is a central feature of the Model Rules. Rule 3.3(a) requires disclosure to

the court to protect the integrity of judicial process. Disclosure of confidential

client information is required even if disclosure is opposed by and will harm

the client. This disclosure requirement explicitly trumps the confidentiality

duty of Rule 1.6(a). On the other hand, Rule 4.1(b), if taken literally, forbids

disclosure to third persons unless the situation falls within the narrow excep-

tions expressed in Rule 1.6(b). The contrast is most dramatic with respect to

client fraud: fraud on a tribunal must be disclosed; fraud on a third person

cannot be disclosed. See also ABA Comm. on Ethics and Professional Respon-

sibility, Formal Ops. 94-387 (1994) and 95-397 (1995).

58. See ABA/BNA Manual of Professional Conduct 01:3 (listing the

dates of state adoption of the Model Rules).

59. MINN. RULES OF PROFESSIONAL CONDUCT Rule1.6(b)(3).

60. Two recent ABA ethics opinions illustrate the Model Rule distinction,

in civil litigation, between required disclosure to the court and voluntary dis-

82 MINNESOTA LAW REVIEW [Vol. 83:63

3. Rules of civil procedure in 1957 and today

Changes in the rules governing discovery and disclosure of

information in civil litigation have affected disclosure obliga-

tions more than changes in ethics rules. Minnesota adopted

civil procedure rules modeled on the Federal Rules of Civil Pro-

cedure only in 1952.61 In 1957, many Minnesota trial lawyers

were still unfamiliar with the new regime of broad discovery.62

The physician-patient privilege was taken very seriously at the

time, and was not routinely waived by a plaintiff who brought a

personal injury action. Prior to 1952, the plaintiff could re-

quest and obtain the report of a physician whom the defense

had retained to examine the plaintiff, but the request might

have the effect of waiving the privilege with respect to the

plaintiff s medical records. This regime was modified by Rule

35 of the new rules, permitting a party to require an examina-

tion and providing for the report s disclosure to the examined

party on specific request.63 Since no such request was made in

Spaulding, the Minnesota court was correct in concluding that

state procedural law did not require defense lawyers to disclose

Dr. Hannah s report to the plaintiff.

closure to the adverse party. See ABA Comm. on Ethics and Professional Re-

sponsibility, Formal Ops. 94-387 (1994) and 95-397 (1995). The first, Opinion

94-387, concludes that a lawyer, knowing that the statute of limitations has

run on a claim asserted by the opposing party, may negotiate a settlement

with that party without disclosing that the claim is barred. There is no ethical

obligation to disclose this information. On the other hand, Opinion 95-397

concludes that when the lawyer s client has died after a settlement offer has

been received, but prior to response, the lawyer must disclose this fact because

the claim is transferred to a new party the personal representative who

may or may not be the lawyer s client. Misrepresentation to the court would

be involved in accepting the offer without disclosing the information, which

should also be noticed to the opposing party. At this point, the deceased cli-

ent s lawyer no longer has authority to accept the offer as the client s agent.

See ABA Formal Op. 95-397; cf. Virzi v. Grand Trunk Warehouse & Cold Stor-

age Co., 571 F. Supp. 507, 511 (E.D. Mich. 1983) (setting aside allegations of

concealment of death of plaintiff during settlement of a personal injury claim;

holding that failure to substitute the proper party under Rule 25 of the Fed-

eral Rules of Civil Procedure led the court to enter an order of settlement for

a non-existent party ).

61. MINN. R. CIV. P. (effective Jan. 1, 1952).

62. The information in this paragraph is drawn largely from conversa-

tions of Roger C. Cramton with Professor John J. Cound of the University of

Minnesota Law School.

63. MINN. R. CIV. P. 35.02. Under the regime of broad discovery, the

plaintiff s physician-patient privilege is essentially waived by the plaintiff put-

ting physical condition in issue in the law suit.

1998] PROFESSIONAL SECRECY 83

Today, a number of states, but not Minnesota, have

adopted procedural rules imposing an affirmative duty on a

civil litigant to disclose to the adverse party material informa-

tion relating to the case.64 Rule 26 of the Federal Rules of Civil

Procedure also takes this course.65 Although many federal dis-

trict courts have opted out of Rule 26, it is applied in the Dis-

trict of Minnesota.66 In a jurisdiction in which these affirma-

tive obligations to disclose exist, defendants and their lawyers

would be obliged to reveal to a plaintiff the identity of individu-

als likely to have discoverable information, along with all

documents relevant to the merits and any material supporting

damages that are claimed.67

Disclosure provisions of this sort, enforced by fear of incur-

ring judicial displeasure or sanctions in the proceeding, have a

more powerful effect on lawyer behavior in litigation than the

provisions of ethics codes concerning abusive litigation conduct.

The latter provisions are cast in general terms, and include

qualifiers that make them largely unenforceable in discipline

proceedings and other contexts.68 Here again, there is an im-

portant lesson. Because procedural requirements tend to be

more specific and more frequently enforced than the corre-

sponding provisions of ethics codes, they have a much more

powerful effect on lawyer behavior than the ethics codes.

64. See Lauren K. Robel, Mandatory Disclosure and Local Abrogation: In

Search of a Theory for Optional Rules, 14 Rev. Litig. 49 (1994).

65. FED. R. CIV. P. 26(a) (as amended in 1993).

66. See Robel, supra note 64, for a discussion of local rules opting out of

Rule 26. Professor John J. Cound has informed the authors that the United

States District Court of Minnesota has no local rule displacing Rule 26, which

is in effect in the Minnesota federal court.

67. FED. R. CIV. P. 26(a) (as amended in 1993).

68. See, e.g., MODEL RULES, supra note 10, Rule 3.1 (dealing with frivo-

lous assertions), Rule 3.2 (dea

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