The Tension Between Justice and Privileged Communications:

In yesterday's NYT, Adam Liptak had an interesting column about what happens when lawyer-client privilege results in wrongful convictions.

A lawyer’s broad duty to keep clients’ confidences is the bedrock on which the justice system is built, [most legal experts] argue. If clients did not feel free to speak candidly, their lawyers could not represent them effectively. And making exceptions risks eroding the trust between clients and their lawyers in future cases. Experts in legal ethics are quick to point out that the various players in the adversary system have assigned roles and that lawyers generally must tend to a limited one.

“Lawyers are not undercover informants,” said Stephen Gillers, who teaches legal ethics at New York University. Indeed, said Steven Lubet, who teaches legal ethics at Northwestern, few clients would confess to their lawyers if they knew the lawyers might some day choose to disclose that information.

The analysis does bend a bit, in two ways, in cases involving death.

Legal ethics rules vary from state to state, but many allow disclosure of client confidences to prevent certain death or substantial bodily harm. That means, several legal ethics experts said, that lawyers may break a client’s confidence to stop an execution, but not to free an innocent prisoner. Massachusetts seems to be alone in allowing lawyers to reveal secrets “to prevent the wrongful execution or incarceration of another.”

And there is debate over how a client’s death affects a lawyer’s obligation to keep the client’s secrets. Most lawyers and courts say the obligation lives on. But it can be hard to live with the consequences.

In one case the story recounts, an attorney revealed his client's privileged confession, after his client's death, in an effort to free the man wrongly convicted of the crime -- and may face sanctions as a result.