Law Students

Ethically Required to Remain Silent?

By Scott Felsenthal et al.

I recently came across an article relating to a lawyer's duty of confidentiality in representing a client.  The circumstances surrounding the factual situation in the article may seem to "shock the conscience" of folks not involved in the legal profession or who have not attended law school. 

However, one strong principle many of my fellow students, and probably all practitioners would articulate and express the utmost importance of is none other than the lawyer's duty of confidentiality to their client(s).

The article is titled "Inmate’s Freedom Hinges on Lawyers’ Revelation That Dead Client Killed Guard in ‘82"

A summary of the situation is two public defenders came across evidence or accusations that their client was guilty of the murder of a security guard in 1982.  The lawyers then confronted their client about the accusations and the client admitted to them.  Not only did the client admit to the accusations, he kinda laughed while doing it apparently.  He told his lawyers they could reveal the truth upon his death.

Because of the attorney-client privilege and rules of confidentiality, the lawyers couldn't ethically divulge the information.  Recently their client died of natural causes, which allowed them to testify to the truth of their client's confession some 26 years after the confession took place. 

Another man was serving the time for their client's murder based on witness testimony and will potentially be released from prison now.

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.  This encourages the client to seek legal assistance/advice and communicate fully and openly with the lawyer even as to embarrassing or legally damaging issues.

The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.  The confidentiality rule applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.  A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

The general confidentiality rule set forth in the ABA Model Rules of Professional Conduct states:

Rule 1.6: Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) 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; or

(6) to comply with other law or a court order.

Any thoughts or comments.  Feel free to send them.  Hope this helps refresh some of my fellow law students'  recollection relating to the lawyer's duty of confidentiality.

Full post as published by The Legal Scoop on January 27, 2008 (boomark / email).