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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.

PersonFromPorlock:
So, then, a doctor can't report a bullet wound or communicable disease because doctor-patient confidentiality is central to medical treatment? I wonder what the case would be if judges were doctors....
5.5.2008 12:10pm
TruePath (mail) (www):
That's a bizarre rule about substantial bodily harm.

I know that I would rather lose a limb than spend 10 (maybe even 5 or 3..depending on the prison) years in prison for a crime I didn't commit (then again I would likely commit suicide rather than face life in prison so maybe I'm just weirdly phobic about prison). So why does my potential loss of a limb count for more under this rule?

This raises an interesting question:

If I'm sure the real killer has confessed his crime to one of his attorneys can I credibly threaten to mame myself if evidence of my innocence does not come to light in order to render that attorney an out to their attorney-client privilege.

Ultimately this whole thing seems like a shame since we should be able to satisfy both interests. Why not allow attorneys who have (very strong) exculpatory evidence approach a judge who could then decide if the interests of justice favored granting immunity to this information. I mean if we want to be overly careful we could go beyond immunity and simply grant the individual who confessed to his attorney complete protection from prosecution for that crime.

After all it is better to let 10 guilty men go free than convict one innocent man.
5.5.2008 12:18pm
Public_Defender (mail):
One lesson missed in these cases is how many people didn't do their jobs right. The cops arrested the wrong guy. The prosecutors prosecuted the wrong guy. The witnesses gave false testimony (whether they perjured themselves or were simply wrong), the judge allowed the case to go to the jury, and the jury convicted the wrong guy.

After all that, many people still blame a defense lawyer for someone who wasn't a part of the case.

As Professor Gillers pointed out, we defense lawyers are not state informants. We only rarely know what really happened, even when our clients purport to "confess," they often aren't telling the truth. We try to do our job honestly and competently, and we count on others to do the same.
5.5.2008 12:29pm
Mike S.:
Public_Defender:

But it is fairly likely that at least most of those people were honestly mistaken, where, at least to the extent that he had evidence the his client was telling him the truth, the defense attorney was deliberately hiding the truth. And, while I don't know the details, it is quite possible that the others who failed were not independent failures, but related (for example, the all go mislead by the same erroneous eye witness identification.)
5.5.2008 12:53pm
Larry (anon) (mail):
Public_Defender, I'm sure physicians and teachers and various other professions don't consider themselves state informants either, but they are legally obligated to report crimes to the authorities, even if they would otherwise be privileged.

Why not mandate or allow disclosure from lawyers, in the specific case where a client confessed and another person was convicted and is incarcerated? Certainly this should be allowed in cases where the confessor is dead.
5.5.2008 12:58pm
Bill Poser (mail) (www):
One justification that has been offered for setting the bar at preventing wrongful execution is that this makes disclosure of client confidences sufficiently rare that clients will not be concerned that their lawyer will breach privilege. The argument is that if the bar were set lower, say at preventing wrongful incarceration, lawyers would breach confidence sufficiently often that clients would worry about it and fail to be open with their attorneys.
5.5.2008 1:21pm
Jiminy (mail):
if the constitution isn't a suicide pact, why should the adversarial system be a homicide pact? I agree with Poser where the bar should be set high to wrongful execution.
5.5.2008 1:24pm
Smokey:
If the attorney hears a confession, and if he truly believes it is genuine, he should not defend the perpetrator. And what judge would disagree? Otherwise, the defense lawyer becomes an enabler to an innocent man going to prison.

This particular situation doesn't cast much glory on the legal profession.
5.5.2008 1:25pm
Public_Defender (mail):
Teachers never had confidentiality rules, and I question whether doctors should have the mandated exceptions. Defense attorneys regularly advise sex offenders not to participate in counseling (that the sex offenders desperately need) because doing so would require them to confess to crimes the police do not know of. The disclosure rules doctors and therapists face should be re-examined.

As to the role of defense attorneys, the signal-to-noise ratio is so bad on the information we receive from clients that we often can't sort through it to reach a decision on what I believe to be the real truth. If a client confesses to something, I'm rarely 100% certain that they are telling the truth. When our clients are the accused, it's our job to do the best we can to sort through the noise (and to give our clients the benefit of the doubt).

But are we supposed to open an investigation on a crime our clients are not accused of? Who's going to pay for it? Which client should I stop working for in order to free up the time to launch this independent investigation? How can I preserve my client's confidentiality while verifying/debunking his story?

Unlike prosecutors and the police, defense attorneys usually lack the resources and authority to investigate cases unless the investigation is in the interest of a current client.

A defense attorney's job is to honestly and jealously defend his or her client. Period. We are not roving ministers of justice.
5.5.2008 1:25pm
Seamus (mail):
If lawyers were prohibited from disclosing their clients' confidences even where necessary to collect their bills, or to defend *themselves* against accusations that could lead to civil or criminal liability (the way Catholic priests are forbidden to break the seal of the confessional even to save themselves from unjust lawsuits, incarceration, or even execution), then I might take seriously the way lawyers argue that their privilege is so essential that it must be preserved even at the cost of imprisoning innocent defendants.
5.5.2008 1:29pm
ejo:
it is also a matter of faith that confidentiality is the one inviolate rule in the whole system of law. we can question ages of consent, racism in sentencing and every other facet of our system but confidentiality. Seamus is also correct-if it is so important and sacrosant, why are we able to use the communications as a shield in lawsuits?
5.5.2008 1:36pm
Public_Defender (mail):
The bill collection exception is only enough to acknowledge that you worked for the client. You can't disclose substance.

On another note, I might be a little more open to a disclosure option if the system took post-conviction innocence claims as seriously as many posters want defense attorneys to take them when their client purports to "confess." Prosecutors and judges are enormously resistant to innocence claims. I once had a prosecutor put in writing that innocence claims are what defense attorneys raise when we don't have any real issues.

The burdens of proving innocence after conviction are huge. Even a purported "confession" by another person is not enough. If the system wants defense lawyers to start finking on clients who purport to confess, it can start changing the rules and practices to make it less difficult for prisoners claiming innocence to get real evidentiary hearings and real investigations into their claims.
5.5.2008 1:43pm
PLR:
Seamus: The privilege does not belong to the lawyer, it belongs to people like you who use our services.
5.5.2008 2:02pm
Ben P (mail):

If the attorney hears a confession, and if he truly believes it is genuine, he should not defend the perpetrator. And what judge would disagree? Otherwise, the defense lawyer becomes an enabler to an innocent man going to prison.


And who decides whether it's "Genuine?"

One of the things just about every first year criminal law student learns is that there's basically two (or more depending on teaching style) defenses to any crime.

There's a defense that seeks to create reasonable doubt about one or more element of the actual offense. (That is, I didn't do it, you can't prove I did it, some other guy did it)

and there's a defense that admits the act but attempts to demonstrate in some way that the defendant should not be punished for it. (Yes I did it, but "it" is not illegal, yes I did it, but I had a constitutional right to do "it," yes I did it but "it" was self defense, yes I did it, but I was insane at the time)

When you initially consider that the vast majority of crimes get plea bargained out. A significant percentage of those take care of the weak "I didn't do it" type of defenses. That increases the percentage of the remaining cases where the defendant admits he did something, but says it was justified in some way.

When you additionally consider that a lawyer already has a strong ethical duty to not present false or misleading information to the court, you simply can't envision any kind of a workable system where an attorney has any sort of a binding ethical duty to decide whether or not his client is actually guilty of a crime prior to defending him.
5.5.2008 2:17pm
Prufrock765 (mail):
The VC addressed this very issue at length very recently.
Lots of people who have never practiced law were certain that lawyers who refused to reveal client confidences were the most evil people on the planet.
Query raised then and I will raise now:
Does this blanket rule also apply to clergy? Are priests required to reveal what they know in order to prevent unlawful incarceration?
And how sure does the lawyer need to be before he squeals?
And how can one puff up indignantly and shout that such disclosure must be mandated, and simultaneously argue that we should keep the right against self incrimination. To what lengths ought we go to keep an innocent man from being incarcerated?
5.5.2008 2:20pm
Just an Observer:
Has Law and Order performed this script yet? I have lost track.
5.5.2008 2:54pm
PersonFromPorlock:
Incidentally, isn't the automatic disbarment of lawyers who break client confidentiality pretty much the same "zero tolerance" reaction that's derided on VC as 'brainless' when done by educrats?
5.5.2008 3:16pm
k. mccabe:
Regardless of factual innocence or guilt, every defendant has a constitutional right to a defense. Not only that, but they are constitutionally entitled to an adequate defense per Sup Ct precedent. A lawyer who knows his client is guilty (they got the guy on tape or DNA or some combination of normal police gathered evidence and its patently obvious the guy/gal did it) and intentionally pooches the defense should be reprimanded/sanctioned/disciplined in some fashion. Or they should be barred from representing clients in criminal cases.

As far as the number of times the client confesses to a crime that someone else has been convicted of - how often does that happen? As public defender notes, its hard enough to get them to come clean and be honest about the crime they are currently charged with so you can better defend them - let alone uncharged crimes that someone else took the fall on.

And he is 100% correct that if actual innocence convictions are the main priority to avoid - make it easier for appellate defendant's to challenge their conviction before resorting to Habeus petitions. It does no good for an innocent man to have a standard of review after conviction that is essentially, "Whether any rational trier of fact could have found the elements of the offense(s) beyond a reasonable doubt." Obviously, the guy was convicted so some jury or judge (presumed rational?) found the elements met. This standard gets translated into, "the conviction must be so unreasonable, or so improbable...etc that a reasonable doubt exists" Combined with a highly deferential fact review, even really good arguments or persuasive cases of actual innocence can hit the buzzsaw of the standard of review and go nowhere. By the time all direct appeals are exhausted and lost, the Habeus or post-conviction petition courts have an endless paper trail of the conviction being affirmed. Or more likely, the client has run out of funds to pursue anything other than free help or pro se and predictably bungles the habeus/post conviction proceeding.

Changing the standard of review is not good for judicial economy concerns - as it would likely increase dramatically the number of appeals taken and eventually increase the number of habeus petitions as well. But it would also likely catch mistaken convictions much sooner and perhaps lower the amount some of our jurisdictions are paying to exonerated prisoners. If the appeal case load increased dramatically, and more convictions were remanded to the trial court, then maybe the judges (at all levels) would be more willing to discuss the fact that perhaps there are wayyyyyyyyyyy to many cases in the system, the system itself is malfunctioning or simply under performing due to the strain, and a lot of it has to do with non-violent drug offenses. (Ya, i know, its also possible that people could just stop committing crime(s) drug related or other - but if that is your hope for judicial reform, i gotta bridge for sale...)

Oh, to have a touch of sanity in a system that is thoroughly insane.
5.5.2008 3:17pm
Seamus (mail):
Seamus: The privilege does not belong to the lawyer, it belongs to people like you who use our services.

So what? How does the fact that the privilege belongs to the client make it any less ironic that a lawyer may not reveal his client's confidences in order to save an innocent defendant from imprisonment, but that he may reveal them "to the extent the lawyer reasonably believes necessary", inter alia, "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client" (MRPR 1.6)?

(And please note, Public_Defender, that the exception to the general rule of confidentiality is considerably broader than "enough to acknowledge that you worked for the client." There may be many circumstances under which the lawyer might "reasonably believe[]" it necessary to disclosure the substance of confidential information in order "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client."
5.5.2008 3:25pm
Public_Defender (mail):
Any privileged communication can often be disclosed when the communication itself becomes an issue in a dispute. If I sue my doctor for giving bad medical advice, she can respond by saying what the advice was. If a client accuses a lawyer of malpractice or ineffectiveness based on what the lawyer communicated, the lawyer can give his or her version of the communication. And if a client argues the lawyer did not do any legal work, the lawyer can explain enough about what he or she did to justify the bill.

The existence of exceptions does not disprove the validity of a rule.
5.5.2008 4:49pm
Libertarian1 (mail):
IANAL

If I were to set the legal rules, as the public should be allowed to do, they would be 180° different. After all we do demand "civilian review boards" for the police. When the lawyer in the above case first heard about the true criminal he would be mandated to report it to the judge. Then the innocent man would go free.

As a consequence of this requirement some guilty arrestees would be concerned about admitting all the facts of their case to their defense lawyers. They would get a less vigorous, less successful defense and more guilty men would go to jail. See, a win, win. When a patient comes to my office with syphilis, I am mandated to report the case and the patients name to the state. All his contacts are then pursued and treated. No privacy, just give them the name.

As I said here before somehow it has become a point of pride with many defense attorneys to get their guilty clients off by either a technicality or their brilliant oration. It may be game with you but society suffers.
5.5.2008 5:04pm
Public_Defender (mail):

When the lawyer in the above case first heard about the true criminal he would be mandated to report it to the judge. Then the innocent man would go free.

. . . When a patient comes to my office with syphilis, I am mandated to report the case and the patients name to the state. All his contacts are then pursued and treated. No privacy, just give them the name.

Not the same at all. A positive test for syphilis is eventually definitive as to whether the person has syphilis. But a "confession" is not definitive as to whether the person actually did what he or she claimed. A purported confession requires a lot of follow up work to verify, and even then, we would likely not know for sure what happened.

Also, no prosecutor or judge is going to let someone out of prison just because someone else confesses.
5.5.2008 5:49pm
PersonFromPorlock:

A purported confession requires a lot of follow up work to verify, and even then, we would likely not know for sure what happened.

So, let the cops have it to work on. Your client is a responsible party and it's up to him to deal with the consequences of making a false confession.
5.5.2008 6:45pm
Smokey:
I've given my view above, that if a guilty client states to his lawyer that de did it, and the lawyer has sufficient cause to believe him, then the lawyer should withdraw from representing him. Naturally, some lawyers disagree. Fair enough.

So, let's try the reductio ad absurdum argument:

A client on trial for terrorist activities admits to his defense attorney that he has set a nuclear bomb ticking away in New York City, and provides enough evidence that the lawyer believes him.

Whatcha gonna do now?
5.5.2008 6:57pm
Ben P (mail):

So, let the cops have it to work on. Your client is a responsible party and it's up to him to deal with the consequences of making a false confession.


Except if the cops already have someone, particularly if they've been convicted are going to say "so what? I'm not going to waste money tracking down something we've already got a guy in jail for" and the prosecutors are going to say "We already got the guy who did that, your guy is obviously lying."
5.5.2008 7:00pm
Ben P (mail):

Has Law and Order performed this script yet? I have lost track.


Possibly,

the closest I've seen is an epsisode where a convicted serial killer showed his public defender the location of his body dump, but subsequently refused to consent to letting the Public defender disclose the information. (the location of the bodies of several potentially dead missing women)

Jack McCoy ended up charging the public defender with obstruction of justice, winning the conviction, then ruminating over a scotch what a shame this situation was.
5.5.2008 7:04pm
k. mccabe:
"I've given my view above, that if a guilty client states to his lawyer that de did it, and the lawyer has sufficient cause to believe him, then the lawyer should withdraw from representing him. Naturally, some lawyers disagree. Fair enough."

Does not the constitution factor into this at all? Would you be willing to say, abolish the 4th 5th 6th and 8th amendments so the guilty will more likely get punished and harhsly at that? Perhaps you dont understand the fuss from the criminal defense bar. It is exactly thinking like your own that erodes those constitutional safeguards for the admittedly GUILTY which in turn means the rights are eroded equally for the potentially INNOCENT! Thus making it harder to get innocent poeple off while at the same time making it easier to convict the guilty. That is a bargain with the devil I am not willing to engage in.

Under your theory, I see no reason to even hold a trial at all. If the guy is guilty and all the lawyers agree, why not just summarily punish them? Oh, that would be a bananna republic move - fit for only tin pot dictatorships and totalitarian regimes?

As to your ticking time bomb scenario you also seemed to miss the exception built into the priveledge - when someone's or millions of someone's lives are in direct danger of being lost there is an obligation to report this to the appropriate authorities, no?
5.5.2008 7:24pm
Ben P (mail):

A client on trial for terrorist activities admits to his defense attorney that he has set a nuclear bomb ticking away in New York City, and provides enough evidence that the lawyer believes him.

Whatcha gonna do now?


The model rules are quite clear on that particular point.

1.6(b)A lawyer may reveal such information as the lawyer reasonably believes necessary ...(1) prevent Commission of a criminal act

A bombing is a criminal act, therefore an attorney may reveal information as reasonably necessary to stop it.

Only two states (Florida and New Jersey) have gone farther and said an attorney affirmatively has a duty to reveal such Information.


An attorney MAY also reveal information to prevent the commission of a fraud, or prevent mitigate, or rectify a financial injury to another perpetrated by the client using the attorney's services. (the latter was derived from the Enron scandal)

An attorney may also breach confidentiality to comply with other law or a court order.


There's no law that says I have to affirmatively turn someone in when I know they've committed a crime. I may have a moral duty to do so, but I also have a strong moral duty to keep things told to me in confidence confidential.

You didn't answer the challenge someone put forward earlier. What about a priest? Should a priest also be under the obligation to reveal confessional information every time something unjust will result?
5.5.2008 7:41pm
Public_Defender (mail):
Statement: A purported confession requires a lot of follow up work to verify, and even then, we would likely not know for sure what happened.

Response: So, let the cops have it to work on. Your client is a responsible party and it's up to him to deal with the consequences of making a false confession.

Now we're slipping down the slope. This started out with a claim that lawyers should turn in their clearly guilty clients in order to release a clearly innocent prisoner. Now, you're saying lawyers should turn in their possibly guilty clients in order to let the police investigate whether the right guy was convicted.
5.5.2008 8:09pm
Ben P (mail):

As I said here before somehow it has become a point of pride with many defense attorneys to get their guilty clients off by either a technicality or their brilliant oration. It may be game with you but society suffers.


As an aside, What are all these magical "technicalities" that get guilty defendants off? Because I've certainly never learned about them in Law School.

Are we talking about "Technicalities" like reasonable doubt?

Or is it "technicalities" like self defense?

or is it those little pesky "technicalities" we call constitutional rights?
5.5.2008 9:09pm
Libertarian1 (mail):
Ben P wrote: As an aside, What are all these magical "technicalities" that get guilty defendants off? Because I've certainly never learned about them in Law School.
Are we talking about "Technicalities" like reasonable doubt?
Or is it "technicalities" like self defense?
or is it those little pesky "technicalities" we call constitutional rights?




My client didn't understand the Miranda rights that were read to him.

The police didn't wait 15 seconds before they burst into my client's room and found 24 sub-machine guns.

The passenger of a car stopped for speeding had the stolen loot on him. Why should the police be allowed to search him?

A mother should not be allowed to allow police entry into her home if the true suspect, her son, doesn't agree. Wait for the warrant and allow him to dispose of the evidence.

As a lawyer I bet you could name 100's more. These are technicalities solely designed to get the guilty off. They don't protect the innocent because the person convicted was indeed guilty of a crime.
5.6.2008 3:05am
Public_Defender (mail):
That pesky Constitution. It's full of provisions the Framers "solely designed to get the guilty off." Congress and state legislatures fill statute books with similar provisions.

Of course, maybe the Framers intended us to have a government of limited, not limitless, power.
5.6.2008 8:25am
PersonFromPorlock:
Moi:

So, let the cops have it to work on. Your client is a responsible party and it's up to him to deal with the consequences of making a false confession.

Ben P:

Except if the cops already have someone, particularly if they've been convicted are going to say "so what? I'm not going to waste money tracking down something we've already got a guy in jail for" and the prosecutors are going to say "We already got the guy who did that, your guy is obviously lying."

Public_Defender:

Now we're slipping down the slope. This started out with a claim that lawyers should turn in their clearly guilty clients in order to release a clearly innocent prisoner. Now, you're saying lawyers should turn in their possibly guilty clients in order to let the police investigate whether the right guy was convicted.

PD, the client confesses; the lawyer has no way to determine if he's "clearly guilty" or not. This is hardly down any slope, it's exactly the situation we started out with.

BP, if the state can't be bothered with investigating the confession then your client takes no harm from your action.
5.6.2008 9:00am
Public_Defender (mail):

PD, the client confesses; the lawyer has no way to determine if he's "clearly guilty" or not. This is hardly down any slope, it's exactly the situation we started out with.

No. We don't know if the "confession" is truthful until it is investigated. People lie all the time in the criminal justice system. No prosecutor would automatically assume the truthfulness of a confession by one prisoner for the crime another was convicted of. No defense attorney would either.
5.6.2008 9:55am
Public_Defender (mail):
<blockquote>
PD, the client confesses; the lawyer has no way to determine if he's "clearly guilty" or not. This is hardly down any slope, it's exactly the situation we started out with.
</blockquote>
I misread your comment. Sorry. But the answer is still no, it's not the same situation we started out with. Too many people assumed that the confessing client was automatically guilty and the convicted defendant automatically innocent.

Once you start requiring defense attorneys to break privilege when it <i>might</i> keep an innocent person out of prison, you have put a giant gash in the attorney-client privilege.
5.6.2008 3:28pm