The question this morning, dear readers, is, do you feel better? About the economy, that is! That's what the Boston Globe is asking, anyways. Should we feel better? Is there anything to feel good about? Anyone involved in the recent accounting scandals is likely to have signed off on the new SEC certification. In fact, they've probably improved their fraudulent activities, now that there's more scrutiny. But what's next? Do we require politicians to sign a certification that everything they say is true?

Well, politicians would never agree to it! The Deal and the New York Times suggest that lawyers should be next on the chopping block. The ABA reports Harvey Pitt's (the chair of the SEC) remarks here. The Deal even has the gall to suggest lawyers are like accountants (never!). Accountant-client privilege is nowhere near the level of attorney-client privilege, nor should it be. We, of course, cannot act with impunity when it comes to illegally aiding clients. However, lawyers must still defend their clients to the best of their ability -- at least the last time I checked. SEC regulations that interfere with attorney-client privilege are an example of good intent, bad implementation.

Currently, lawyers disclose client confidences in the face of reasonably certain death or substantial bodily harm. Financial losses, even though they may be substantial, just don't reach that level of harm. Would these new rules (requiring disclosure of activity that is reasonably certain to cause substantial financial harm) be applied only to securities? What about other financial crimes -- jewelry heists, con games, the list goes on! Where do we stop? What constitutes substantial financial harm? Substantial personal injury is about the same to each person, but finances aren't. Could a lawyer be forced to squeal about his pro bono habitual thief client that works poor neighborhoods?

Do we disclose conduct if we think clients might be doing something illegal? Are we on the hook personally for clients who commit fraud without our knowledge? And haven't we already have legal partnership reform to take lawyers off the hook personally?

These are but a few of the many reasons that financial harm shouldn't force an attorney to reveal client confidences. Certainly we shouldn't have to "certify" a client's actions, because that's next. And before you know it, corporate lawyers will be signing loyalty oaths to the SEC. That would make us all feel better, now wouldn't it?

From Joseph Heller's Catch-22:
Almost overnight the Glorious Loyalty Oath Crusade was in full flower, and Captain Black was enraptured to discover himself spearheading it. He had really hit on something. All the enlisted men and officers on combat duty had to sign a loyalty oath to get their map cases from the intelligence tent, a second loyalty oath to receive their flak suits and parachutes from the parachute tent, a third loyalty oath for Lieutenant Balkington, the motor vehicle officer, to be allowed to ride from the squadron to the airfield in one of the trucks. Every time they turned around there was another loyalty oath to be signed.They signed a loyalty oath to get their pay from the finance officer, to obtain their PX supplies, to have their hair cut by the Italian barbers.
To Captain Black, every officer who supported his Glorious Loyalty Oath Crusade was a competitor, and he planned and plotted twnety-four hours a day to keep one step ahead. He would stand second to none in his devotion to country. When other officers had followed his urging and introduced loyalty oaths of their own, he went them one better by making every son of a bitch who came to his intelligence tent sign two loyalty oaths, then three, then four; then he introduced the pledge of allegiance, and after that "The Star-Spangled Banner," one chorus, two choruses, three choruses, four choruses. Each time Captain Black forged ahead of his competitors, he swung upon them scornfully for their failure to follow his example. Each time they followed his example, he retreated with concern and racked his brain for some new strategem that would enable him to turn upon them scornfully again.

Without realizing how it had come about, the combat men in the squandron discovered themselves dominated by the administrators appointed to serve them. They were bullied, insulted, harassed and shoved about all day long by one after the other. When they voiced objection, Captain Black replied that people who were loyal would not mind signing all the loyalty oaths they had to. To anyone who questioned the effectiveness of the loyalty oaths, he replied that people who really did owe allegiance to their country would be proud to pledge it as often as he forced them to. And to anyone who questioned the morality, he replied that "The Star-Spangled Banner" was the greatest piece of music ever composed. The more loyalty oaths a person signed, the more loyal he was; to Captain Black it was as simple as that, and he had Corporal Kolodny sign hundreds with his name each day so that he could always prove he was more loyal than anyone else.

"The important thing is to keep them pledging," he explained to his cohorts. "It doesn't matter whether they mean it or not. That's why they make little kids pledge allegiance even before they know what 'pledge' and 'allegiance' mean."