CLPEX Chat Board

Somewhat off-topic, but nonetheless a concern to all of us who attempt to provide honest, ethical information to the court system was a short clip on the TV show 60 Minutes this evening. This is from memory, so my facts may be a bit off, but the idea is very concerning.

Some twenty years ago, there was a double homicide in South Carolina. The defense attorney for one of the defendants learned from his client that, although two men were charged with the crime(s), his client had admitted privately that he had killed both persons and that the second suspect was not in any way involved. The second suspect was tried and convicted on some "shaky" bullet-lead science that the FBI had provided which was the only circumstantial evidence in the case. Because of the so-called attorney-client privilege, the attorney had been unable to provide the court with the information that the second man was innocent.

Twenty years later, the attorney's client died and the attorney came forward with the disclosure. Rather than to release or re-consider the fate of the second person, a judge has attempted to dis-bar the attorney for abusing that privilege, even though his client was deceased.

Added to all the allegations by attorneys of mis-information from the law enforcement community, one can only wonder what truths and facts have been withheld by warring attorneys causing the incarceration of innocent victims of our criminal justice system.

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"This is not a court of justice, young man, this is a court of law!" - Oliver Wendell Holmes

You've put your finger on one of those really tough areas of legal ethics. The attorney has a nearly absolute duty to protect confidential communications with a client. The disclosure falls within that area. Worse, the only way to disclose it would be to inculpate the client by admitting his presence at the scene and guilt in the homicide.

I expect that counsel spent a long time thinking about this, and likely talking with experienced colleagues (without giving details, of course). Many states have an anonymous advice line where attorneys can consult the folks who investigate claims of malpractice (the state's counterpart to Mass' Board of Bar Overseers or CT's Grievance Committee) for answers. I don't know what answers he got, but I wouldn't be surprised if he was told that he couldn't make a disclosure without his client's permission. If he had, there's a strong risk he'd have been disbarred at the time -- and the disclosure wouldn't have done any good unless the client was willing to back up the claim with a sworn statement or testimony. (And even then, prosecutor might not have believed the client and continued to prosecute the second defendant on the bullet lead evidence.)

Yes, the situation stinks, but the courts long ago decided that the only way to make the attorney-client system work was to strongly protect the client's right to consult in a privileged manner.

There are two issues here that bother me. First, the original client is dead, so why is the so-called attorney-client priviledge being honored by a judge. What possible benefit could there be with respect to a deceased client? What damage could possibly be done, compared to the benefit to the innocent? Does that not meet the moral, ethical definition of breaking the bond? Apparently the legal definition is not met.

Second, a presumably innocent man, the alleged stock-in-trade of the defense attorneys, spent 22 years incarcerated for a crime that he probably did not commit, when a defense attorney knew he was innocent. The defense attorney believed that for 22 years, yet could (would?) do nothing. The client dies, he comes forward, and he is being disbarred by a judge.

We have all seen a few innocent persons locked up. We have all seen far, far more guilty persons allowed to go free and commit additional crimes.
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"This is not a court of justice, young man, this is a court of law!" - Oliver Wendell Holmes

I don't claim to understand the logic, but attorney-client privilege is forever according to the U.S. Supreme Court:

See: http://www.cnn.com/ALLPOLITICS/1998/06/ ... us.foster/

Prior to 1998, courts apparently varied on the subject, see: Simon
Frankel, The Attorney-Client Privilege After the Death of the Client, 6
Georgetown J. of Legal Ethics 45 (1992); B. Hood, The Attorney-Client Privilege and a Revised Rule 1.6: Permitting Limited Disclosure After the Death of the Client, 7 Georgetown J. of Legal Ethics 741, 767 n. 156 (1994).

No disagreement that the attorney was placed in a very difficult situation. Back in my law school days, we studied the case of an attorney for a serial killer who was told where some of the victims' bodies were buried during plea negotiations. Families of those who suspected their children were victims pleaded with the attorney to let them know whether their kids were alive or dead. Attorney could not even disclose that fact, as these were victims not yet found by police. Again, a very difficult situation for counsel who, as I recall, afterwards retired from the law. See People v. Belge, 50 A.D.2d 1088, 376 N.Y.S.2d 771 (4th Dept. 1975), aff’d, 41 N.Y.2d 960, 390 N.Y.S.2d 867 (1976).

For further info, this covers some of the issues, tho the opinion is a bit dated:
http://www.cobar.org/index.cfm/ID/386/s ... -07/24/82/

http://www.law.cornell.edu/ethics/ny/na ... R_1_06.HTM

Hi Lisa. I have a hypothetical question for you...

If a defendant awaiting trial were to confide in their attorney that they had intentions of killing one of the key witnesses in their own upcoming case would the attorney still be bound by the same 'privilege'? Afterall, If the attorney chooses to disclose their clients intentions wouldn't this also 'inculpate' the client based on their motives?

I assume that 'eminent danger' must factor into the consideration/action that the attorney can exercise and I realize that this is a twisted hypothetical question but I'm just curious as to where the attorney-client privilege line begins and ends.

Thank you.

Carl Speckels wrote:Hi Lisa. I have a hypothetical question for you...

If a defendant awaiting trial were to confide in their attorney that they had intentions of killing one of the key witnesses in their own upcoming case would the attorney still be bound by the same 'privilege'? Afterall, If the attorney chooses to disclose their clients intentions wouldn't this also 'inculpate' the client based on their motives?

I assume that 'imminent danger' must factor into the consideration/action that the attorney can exercise and I realize that this is a twisted hypothetical question but I'm just curious as to where the attorney-client privilege line begins and ends.

This is a problem that confounds folks far more experienced than I. As I understand it, if a client poses an imminent danger of death or serious bodily harm to himself or others, the attorney may make an appropriate disclosure to police under the Tarasoff rule. One of the problems here is telling when a client is serious and when he or she is just blowing off steam. Unless the situation were really imminent (I'm going to go do this when I leave your office), I'd likely want to consult quickly with my disciplinary body's advice line first and word the disclosure very, very carefully.

Likely doing so would make the attorney a potential witness in another case, so it would likely also force the attorney to withdraw from the existing case.

See:
http://legallad.quickanddirtytips.com/c ... ality.aspx
http://www.apa.org/monitor/julaug05/jn.html

One of the links I posted for MDavis also talked about things like tangible evidence of a crime given to an attorney.

Oxymoron of the Day: LEGAL ETHICS

mdavis' tag line says it all.

what's that " Oxymoron" ,never heard of this word before.