Spaulding v. Zimmerman as an Ethics Lesson

Earlier in the semester, I taught Spaulding v. Zimmerman for the first time in an ethics course versus in a dispute resolution course. And, not completely surprisingly, the frame actually matters. You might remember that Spaulding v. Zimmerman is the case where there is a really nasty car accident. One of the survivors is a teenager who is suing the driver of his car. The defendant’s doctor examines the teen during discovery and finds an aorta aneurysm but the defendant’s lawyer does not reveal this to the other side (or to his own clients). The aneurysm is luckily discovered two years later when the teen joins the army and his physical exam reveals it (upon which immediate surgery is performed). Upon a motion to reopen and set aside the settlement, the trial court held that the settlement had to be vacated since the judge did not have all facts when approving the settlement on behalf of a minor.

The case, as taught in DR, focuses on the importance of conveying(harmful) information and is often used to help students grapple with the issues of strategic information sharing. How and when should this information get shared? How can you work this out best for your client?

In Ethics, the case is taught as part of the lesson on Rule 1.6 and confidentiality. The initial decision by the lawyers not to share the life-saving information is not at all criticized by the trial court judge who seemed to blame the plaintiff’s lawyer for not performing sufficient discovery. As the judge wrote, “there is no doubt of the good faith of both defendant’s counsel.” Really? I, for one, am delighted about the more recent change in ethics rules that makes it at least permissible to share information like this with the other side. But I still wonder about a set of rules in which lawyers who choose not to are actually praised. Should protecting confidentiality be a higher value than saving life? Shouldn’t we require lawyers to share this? It’s cases like this that remind me that the Model Rules are a floor rather than a ceiling.

I also think that this case is the height of hierarchical, paternalistic, wrong-headed decision-making. (Perhaps you can’t tell how much this case bothers me!) To me, the lawyers who don’t want to deal with harmful information are not necessarily protecting their clients. Instead, I think the lawyers don’t want to engage in awkward or unpleasant conversations with their clients and so choose to hide under confidentiality rules. First, the issue of whether to reveal confidential information rests with the client not with the lawyer. Second, I think if the information is of this type where it is clearly life-saving, then it is up to the lawyer to have that conversation with their client about this information. Yes, it might be ugly. Yes, it might cost you more money. And, could you sleep at night? The defendants in Spaulding had a personal relationship with the plaintiff. What if he died and they never had the chance to save him? Sometimes the negotiations with your clients are just as important as the ones with your counterparts.

2 thoughts on “Spaulding v. Zimmerman as an Ethics Lesson”

  1. If only the Lawyers in the Spaulding case had had the ethics hotline we do today. I used the one offered by our state bar today pertaining to the Dunn & Mudd exercise. Given the same set of facts many can interpret the “correct” path differently. Having the system we do today there are fewer excuses to take a path that is clearly wrong. The resident expert at the State bar was able to give me a clear answer, even on issues I perceived as sticky at best.

    All we can hope for is that teachers will continue to inform students about the ethical “floor” and these students entering practice will act ethically and encourage co workers to use the resources available, like the state bar ethics hotlines.

    I won’t comment about proofreading.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.