Mitch makes further inquiry and finds the firms secrets, by hiring his brother Rays friend, Eddie Lomax. Lomax is a private investigator and agrees to help Mitch research the firm and its deceased employees, and finds the firms illegal activities. Comprehending and acting on the duty to the corporation as whole requires lawyers to activity look beyond the instructions they receive from the individuals they are dealing with in order to consider whatever the interests of the corporation as a whole are being followed properly. This involves a degree of ethical discernment beyond the law- an element of moral activism [11] . Moral activism would thus involve Mitch taking into consideration and weighing a number of factors and not just relying on role morality - the professional rules. Moral activism encouraged Mitch to consider the impact of his actions on justice, the integrity of the legal system and the impact of their role on the preservation of relationships. Therefore the duty to the corporation as a whole does not mean that Mitch needed to substitute his own moral judgment for that of the corporation [12] .
Sissela Bok states that "confidentiality, like all secrecy, can cover up for and in turn lead to great deal of error, injury, and abuse. These uses may more commonly arise when maintenance of confidentiality is used as a shield to protect colleagues or to Chapters seventeen through twenty determine the direction of Mitch's journey. He clearly is uncomfortable with the firm's business practices. While he desires a certain way of life, Mitch is torn between materialism and his own ethics. Mitch's natural inclination would have been to cooperate with the FBI. However, in this section of the book, he learned to distrust the FBI. Their carelessness could have aroused suspicion that would result in his untimely death. From this point forward, Mitch will still cooperate with the FBI, but Mitch will be the one to make decisions and place orders. In the office, DeVasher shares with Mitch the pictures they captured of him and the island woman. The pictures are an intimidation tactic meant to keep him quiet.
It is quite clear that lawyers acting got a corporation owe their obligations of care and loyality to the corporation as a whole, not to individual managers , executives or work teams, since it is the cooperation that is the client, not individual officers. Breaches of the obligation to the coporation as a whole could amount to a basis for disciplinary action or actions for breach of duty by the corporation. Lawyers who may have contributed to the managemnet's wrongful conduct can be also sues, as may occur with Vinson and Elkins in relation to Enron. [13] Corporate lawyers usually deal with individual corporate officers who define the scope of their work, and whose concerns and goals colonize corporate lawyer's consciences. Comprehending and acting on the duty to the corporation as whole requires lawyers to activity look beyond the instructions they receive from the individuals they are dealing with in order to consider whatever the interests of the corporation as a whole are being followed properly. This requires a degree of ethical discernment beyond the law- an element of moral activism. Although the duty to the corporation as a whole does not mean that corporate lawyers need to substitute their own moral judgment for that of the corporation.
The Austrlian Coporate Lawyers' Association (ACLA) " best practice guidelines; on ethics for inhouse lawyers reflect this understanding that the law and professional conduct rules require lawyers to report unethical conduct up in the corporate hierarchy. They state that where an inhouse lawyer needs to be whistle blower," they should make the appropriate disclosures first to the company's Senior Legal Officer and then, if still necessary, to the company's Chief Executive Officer. If requires, the disclosures should then be made to the company's Chairman'. This is consistent with the 2004 amendments to the Australian Corporations Act which protect corporate employees and service providers from civil or criminal liability, or victimization, where they disclose in good faith information relating to a possible breach of the cooperation legislation within the company to the board or to the corporate regulator. [14]
Moreover, there are also exceptions to confidentiality and lawyer-client privilege in unusual situations where the public interest is at stake, or the client is abusing the lawyer's services for illegal purposes. The Model Rules (3.1.3) provide for an exception to lawyer client confidentiality that allows a lawyer to disclose information "in circumstance in which the law would probably compel its disclosure, despite a client's claim of legal professional privilege, and for the sole purpose of avoiding the probable commission or concealment of a serious criminal offense". The working of the rule is rather confusing, but is appears to incorporate into the Model Rules that " illegality" exception to client legal privilege, and possibly also the public interest defense to breach of confidence. The Ilegality exception to client legal privilege says that a client cannot claim that lawyer-client privilege protects them from disclosure of communications with their lawyer, where the client was seeking to use the lawyer to help further a criminal, fraudulent, or other illegal purpose. [15] it does not matter whatever the lawyer knew at the time where the client's purpose was, nor whether the lawyer joined in that purpose. The High Court of Australia has defined the scope of this eception broadly. It is not 'confined to cases of crime and fraud… unless the meaning is extended to anything that might be fraud on justice". [16] The general law on confidentiality also recognizes that disclosure of confidential information to an appropriate authority that can do something about it might be necessary in the public interest. A person who discloses someone's confidence will therefore be protected from liability by the public interest defence if a court decides that the interest in maintaining the confidene is outweighted by a higher public interest, such as the prevention of wrongdoing or harm to others or to national security [17] . In addition to Rule 3.1.3, the Model Rules (3.1.2) also make exception to the professional duty of confidentiality where the lawyer "is permitted or compelled by law to disclose". This would import the public interest defence into professional conduct obligations and allow a lawyer to disclose confidential information, if a court would find it it was in the public interest to do so. Corporate lawyers often as if confidentiality is an absolute value that must be protected at all costs. But in fat the illegality exception to client privilege and the public interest defense to breach of confidence mean those lawyers' ordinary obligation of confidenality do not apply, and client legal privilege does not apply, where a corporation is acting illegally, or perhaps unethically, and the conduct is likely to physically or economically harm people, or the public interest otherwise demands it.
The content of the current law on confidentiality gives ample room to corporate lawyers to fulfill their ethical duties. But knowing when to breach confidence requires ethical judgment an element of moral activism, not just legal knowledge , as the circumstance in which the public interest or a client's "fraud on justice" might justify and, indeed, demand whistleblowing can never be fully specifies in the law.
Solicitors Rules r2. Confidentiality
