The following appeared in Volume 98, Number 1 (Fall, 1998) of the APA Newsletters

The analysis is far trickier in regard to undiscovered misconduct, especially in those circumstances in which ignorance may indeed be bliss and knowledge the source of great unhappiness. Does Professor Bronaugh believe that errant spouses should confess to any affairs they might have engaged in even if the wronged spouses are happily ignorant and if knowledge of the event, however sincere the confession and accompanying promises not to repeat the behavior, will in fact simply make the wronged spouses far unhappier with their knowledge than they would be without it? Given that he wrote his piece many months ago, Bronaugh should be congratulated for his astonishing prescience in considering the possibility that "[p]oliticians . . . may be morally justified when they refuse to admit, and indeed lie about, some of their sexual peccadilloes," because of their "belief that they have a larger mission which could be compromised by their confession." He says that they should at least feel a measure of what he calls "agent-regret," but this is different, apparently, from any duty to feel that they are behaving truly wrongly. One hesitates to believe that Bronaugh would be so cavalier, given the thrust of his general argument, if the politician in question had violated morally defensible laws regarding, say, campaign finance or had cheated on his/her tax return in order to be able to have enough money to publicize the "larger mission" of the campaign, unless, at least, he adopts a strong form of utilitarianism that would allow candidates to violate (almost) any law, however defensible, if they determine that the social cost of violation is less than the cost to the public of their potential electoral defeat. If I am correct in my surmise, then this reveals simply that sex might be special or, possibly, that (most) sexual conduct, properly understood, does not raise moral issues at all. (Perhaps this is the meaning of the word "peccadilloes," though, interestingly enough, the dictionary definition of "peccadillo" – "a petty sin or offense; a trifling fault" – still carries at least mildly critical overtones, whereas many contemporary philosophers, especially if they are secular liberals, would refuse even the label "peccadillo" to, say, joint marital participation in group sex.)

Professor Bronaugh’s essay is far less about a particular defendant’s own duties than about the duties of a morally honorable lawyer. In particular, can such a lawyer "collaborate" with an obviously guilty client, who ought to, but does not, confess, by keeping secret the damning information? Bronaugh basically answers no, unless the defense for confidentiality is "service to the ideals of the justice system" itself (Bronaugh,88) rather than a misconceived sense of loyalty to a client who deserves no such loyalty. So long as one continues to assume that the conduct in question is malum in se, this seems right to me. A problem might be that relatively few defenders of the lawyer’s duty of confidentiality would disagree; almost all ultimately ground their defense of confidentiality on the basis of "service to the ideals of the justice system." This is most certainly true of David Luban in his influential book Lawyers and Justice; I think it is true as well of the best-known advocate of legal confidentiality, Monroe Freedman, whose conception of a truly justified system of justice includes the presence of attorneys zealously committed to protecting their clients when faced with the loss of liberty.

One might well test the limits of Bronaugh’s argument by asking if he would apply the same analysis to some of the other great standard confidentiality privileges. The most important one, at least theoretically, is surely the priest-penitent privilege, which is similar to the lawyer-client privilege in that it is not only an evidentiary privilege, relating to what evidence may be introduced in a legal proceeding, but a far more general prohibition of any disclosure. Would Bronaugh castigate the priest who maintained resolute silence about a penitent’s confession, whatever the consequences for third parties (including, perhaps, a person who was falsely convicted of the crime committed by the parishioner)? Perhaps more to the point, if he defends such a privilege, would the defense rest on the privilege’s having much, if anything, to do with internal "ideals of the justice system itself"?

As a matter of fact, the priest-penitent and lawyer-client privileges are rather exceptional in their sweep. Contrast them with the spousal privilege, which is only evidentiary. Although a factually guilty, presumptively immoral, defendant can prevent his or her spouse from disclosing before a legal tribunal certain confidential communications, (s)he cannot – at least in the United States (the United Kingdom is a different story) – obtain an injunction against the publication of a"kiss-and-tell" memoir disclosing all of the secrets. Still, the legal system does disable itself of truthful evidence in regard to loyal spouses; again, it is hard to see how the "ideals of the justice system" justify that. This, indeed, was Bentham’s position in his ruthless castigation of testimonial privileges as attacks on the ideals of any rational justice system.