Attorney-Client Privilege :
The attorney-client privilege is the oldest privilege recognized by Anglo American Jurisprudence.
There are very few exceptions to the sacred privilege and in all but one state, a lawyer may not reveal confidential communication even if the information would free an innocent person, wrongfully convicted of a crime.
I viewed an unusual privilege issue on Law and Order last night. Yes, I am a Law and Order junkie! What can a lawyer do, legally, if her client confides that she killed a certain person and the lawyer subsequently learns that an innocent person is is imprisoned as the perpetrator of that crime? Tough one?
I confide in you as my lawyer that I murdered Jane Smith. Six months later, Rick Bond is arrested, tried, convicted and sentenced to life in prison for murdering Jane Smith. You know that Rick Bond is actually innocent because I am your client and I confessed to you that I did it. The law prohibits you from revealing your clients's confidential communication. What do you do?
Watching this particular episode of Law and Order made me queasy. Law and Order is fictional, but the issue addressed is very real. If a lawyer reveals the privileged communication he or she is throwing away their career, livelihood and everything they have worked so hard to become and could also be charged with a crime. If the lawyer remains true to his or her oath, does not violate this sacred privilege and follows the law, an innocent man will spend the rest of his life in prison. It get worse. Even if the lawyer follows his or her conscious and reveals the privileged information, if it is revealed without a waiver from the client, the information is useless in a court of law.
In the past several years, the fictional plot explored on Law and Order has haunted real lives. Two wrongful conviction cases have been spotlighted in the media. Both cases involved lawyers who were privy to confidential information conveyed to them by clients that would help free wrongfully convicted men, but both lawyers were barred from coming forward. They were prohibited from coming forward and sharing information that would help free innocent men. These lawyers were bound by the very same judicial system that advocates life, liberty, freedom, justice, truth, and the pursuit of happiness
In one of those cases the offending client allowed his attorney to reveal information that would free the innocent man, upon his death. The lawyer did so, but not until after the wrongfully convicted man spent two decades in prison. The second case has a much more chilling result.
Staple Hughes, a North Carolina attorney, revealed his clients's privileged communication in 2004, after his imprisoned client died. Hughes hoped to free the wrongfully convicted, Lee Wayne Hunt from his life sentence. Hughes, stated that his his now dead client, confessed that he and he alone committed the double homicide for which Hunt was serving a life sentence. Hughes kept his client's confidence for twenty-two years while Hunt was serving a life sentence for a crime he did not commit.
Hughes felt it was "ethically permissible and morally imperative" that he come forward with the exonerating information, once his own client died. The law, unfortunately disagrees. An attorney is bound by the attorney- client privilege even after the death of his or her client. Because Hughes did not receive his client's consent to reveal the confidential information upon his death, Judge Jack Thompson of the Cumberland County Superior Court in Fayetteville, North Carolina refused to consider Hughes' testimony during the 2007, hearing for a new trial. The judge stated, "Mr. Hughes has committed professional misconduct." The judge reported Hughes to the North Carolina Bar for violating attorney-client privilege and Lee Wayne Hunt remains in prison despite the exculpatory evidence showing his innocence. You can read summaries of both cases and find links to the actual court cases here.
The principle of confidentiality is set out in the legal ethics rules in each jurisdiction and in ABA Model Rule 1.6. Model Rule 1.6 Comment  states: “A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation. ... This contributes to the trust that is the hallmark of the client-lawyer relationship.” American Bar Association
What is your opinion on the law that prohibits an attorney from revealing confidential information? Should there be an exception if the information will free a wrongfully incarcerated person? Or would an exception to the rule hinder a client's ability to freely and openly discuss facts and circumstances with his or her attorney without fear of disclosure?
This blog is not intended as legal advice.