There may be a factual answer here, but I suspect a lot of wiggle room exists, hence my feeling that GD may be more appropriate.
A friend who is a law student was recounting an attempted car theft she witnessed. In the event, nearby police were too busy directing traffic to be concerned about the reported theft in progress. The student and a friend went back and scared off the would-be thieves, warning them (falsely) that police were on the way.
I was impressed with her meritorious action. I pointed out that after passing the bar, she will be an officer of the court, and would she then have an actual obligation to thwart a crime? Or merely an obligation to report it?
We agreed that she had no obligation to put herself in harm’s way, and that every citizen has a duty to cooperate, or at least not obstruct, law enforcement. But does an officer of the court have an obligation above and beyond that of a normal citizen, to try to stop a crime where there is no risk to herself?
On the contrary, my friend guessed that she might actually have an obligation to report but not to intervene, because such intervention could prejudice the judicial process, or some similar phraseology. Except if the thief were her client, in which case the attorney must try to stop him from thievin’.
Can someone clarify this issue? Or at least muddy it up with applicable knowledge and more learned speculation?
That’s a stupid thing to say, Dexter. What’s the role of Crown prosecutors / DAs and the ex-lawyers who make up the judiciary in your little world?
Dqa, I know of no legal rule that places a higher obligation on legal practitioners to prevent crime than the average person is subject to. I’m in Australia, so YMMV.
On the other hand, there are certain ethical standards a lawyer must live up to when dealing with clients, creating obligations that could be interpreted as “preventing a crime”, for instance in the scenario of your client telling you that he / she plans to commit a crime. I’m not sure if that’s the kind of thing you’re interested in, but if you are, I’m happy to discuss it.
Lawyers do not have any special duty to report or prevent crime. In their personal lives, they are people like any others. In some instances, such as where the attorney learns of a crime that has already been committed during the course of representing a client, the attorney client privilege prevens the attorney from disclosing the crime as it is the client who gets to determine whether the attorney can disclose it. However, if the attorney learns of a planned crime in which someone is reasonably likely to be harmed, such as where a client in a divorce case admits to a plan to kill the estranged spouse, then the attorney is allowed to disclose those facts.
Perhaps you could explicate for me what types of insults allowed or not allowed in Great Debates as I could swear that this statement belongs in the Pit and not here. Enlighten me please.
I think Dex may have been making allusion to Mayor Richard Daley who once famously said, “The police are not here to create disorder.
The police are here to preserve disorder”
We may regard this as our beloved Administrator’s assay into political humor. The line is a play on the late and unlamented Richard Dailey’s comment on the police riot during the Demo Convention in ‘68: “The police are not here to prevent disorder. They are here to preserve disorder.” At the time it was seen as an ironic misstatement and a pleasant change from the spectacle of the mayor repeatedly screaming ‘Fuck you, fuck you, fuck you” at a platform speaker who decried the lawlessness of the Chicago PD and mob scene on Michigan Avenue.
Nice try, Sir, but not funny.
As a general proposition a lawyer’s duty of confidentiality extends to things learned from a client that have already happened. When confidential information reveals things that will or might happen in the future that are within the state’s police power to prevent there is a duty to tell the client to (1)shut up, (2)don’t do it, (3)I must tell and to report the information to the proper authorities. For things that happened in the past – stuff like where the body/loot is hidden - the obligation of confidentiality is pretty much absolute.
I wish I could say that I have this one down cold. Instead, I’m hoping that none of my clients ever admit to criminal plans. Luckily I work with patents and trademarks so its unlikely, unless someone comes to me with a foolproof method for robbing banks and asks for a patent application.
Anyway, from the depths of memory, there is a harm element in there somewhere. By this I mean that the only way an attorney can flout the privilege held by the client is if the client’s actions would harm someone. How much and how likely are up in the air. I may be incorrect on this, but hopefully someone will correct me if I’m wrong.
Spavined basically hit it. It’s never actually come up in my practice (I don’t do criminal law, which reduces the chances of a client telling me about his future criminal plans), but the rule that governs my conduct states (after setting forth the general rule about not disclosing client confidences):
“A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm. A lawyer may use or reveal … the intention of a client to commit a crime in circumstances other than those enumerated [in the preceding sentence]”
Note the may/must distinction.
Heh heh. Even IN the practice of criminal law, it never came up. Most of the time, clients would deny their involvement in PAST crimes, despite loads of evidence to the contrary. Not once did anyone lay bare in confessional their plans for future misdeeds.
Which of course ignores the role of all Crown prosecutors who seek to prevent crime by bringing cases to trial. Even if intended as a riff on Mayor Daley, I’m afraid I’ve never really considered him a reasonable model to follow, nor particularly funny. YMMV. {shrug}
Getting back to the OP, the position in Canada is similar to that referred to by other posters: the duty of confidentiality is near absolute with regard to communications about past conduct, but the lawyer has a duty to reveal communications that the client intends violent actions in the future. There may also be a duty to reveal communications that involve criminal conduct short of violence, depending on the facts of the case.
Note that in the situation set out in paragraph 12, the lawyer need not reveal confidential information, but as a practical matter will be giving out some information by the mere fact of warning officials.
So, all editorial comment from the bleachers notwithstanding, if a future crime is learned about confidentiality goes out the window. If violence is involved it must be reported, if not it may be.
If a serious and likely future crime is learned about, confidentiality goes out the window, yes. Perhaps it might be useful to think of it as the point where a lawyer’s primary duty as an officer of the court (and as a human being!) outweighs the lawyer’s important, yet secondary, duty to his / her client.
The true skill is to avoid getting into such a position in the first place. Some lawyers choose to turn a deaf ear to discussions of future crimes to the point of sticking fingers in their ears and singing, some advise the client that they must pass on any such information. The first seems unethical, in my view, and the second is guaranteed to make your client less likely to trust you.
My preferred solution is to stop any such outbursts from clients as soon as they begin, to attempt to dissuade clients from any future crimes, explain the negative possible outcomes, and attempt to get an undertaking from them that they will do no such thing.
Have you read the preceding posts where at two people have given direct quotes from governing codes of professional responsibility that say exactly this?
Suppose (this is obviously hypothetical) you are a criminal defense attorney, and you have agreed to represent a defendent in a murder case. Your client freely confesses his guilt to you…he killed the victim, and arranged the crime scene as to fram another (totally innocent) party. Because your client had so carefully planned the crime, there is very little direct evidence linking him with the crime. Hence, your client expects to get off.
Except for one thing…in bragging (to you) about his prowness as a murderer, the defendent lets slip that he stole an item from the victim’s home…this is now in his possession. What do you do?
Do you urge the client to confess his guilt, and accept the penalty?
Or, do you continue on to trial, and present an excellent defense (and get your client off).
Or, (in your capacity as officer of the court) do you inform the prosecution of your client’s theft of the item?
Ralph, there is no obligation to inform on your client for a crime that has already taken place. Confidentiality remains, so you’re not going to go to the police and the item in your client’s home is immaterial. (If you believe another serious crime is likely to take place, confidentiality breaks down, as mentioned above.)
Now, I’m not sure what the situation is in America, but in Australia, your obligation in such a situation is to urge your client to confess. If that is impossible, you must withdraw from the case if there is sufficient time for another lawyer to take over.
If there isn’t enough time, you may still defend him, but you may not present a positive defence. That is, you may not say that your client did not do the things he has confessed to doing ie you can’t stand up in the court and claim that your client didn’t do the relevant acts or that another person did. In that situation, you’d be saying something you know isn’t true - you’d be lying to the court, which you may not ethically or legally do. You may still present a passive defence - for example that while your client did kill the victim, it wasn’t murder for various legal reasons.