Say someone consults a criminal-defense attorney and says, “I committed a murder 10 years ago,” etc. etc., there’s no doubt the lawyer would keep it confidential.
But if someone consults a totally different type of lawyer - family law, property law, estate law, employment law, business law, etc. - and mentions the fact that he committed a murder 10 years ago, is the lawyer obligated to keep that secret, given that it is outside of his field?
There are two separate questions here. One is whether the privilege is limited to criminal defence attorneys or extends to all attorneys. Like all legal questions this is dependent on jurisdiction, but in the jurisdictions I’m familiar with, it’s clear that it applies to all attorneys, not just those working in criminal defence. Typically, it also applies, for instance, to in-house legal departments for legal advice they provide to others in the same company.
The second question is whether privilege is limited to issues relating to the legal advice the attorney has been asked to give, or also extends to issues unrelated to that advice which the attorney just happened to hear about. Here, the usual approach is that a connection to the legal advice provided by the lawyer is necessary for privilege to apply. Whether that covers your situation depends on the reason why the client mentioned the murder in the conversation with the attorney. If it’s somehow relevant to the legal issue the attorney has been asked to advise on, then I’d say privilege applies.
Yes, all. I found out last night it applies even if the client is dead.
In the US, it makes no difference what kind of lawyer it is. However, as Schnitte observed, the privilege doesn’t apply if the information wasn’t shared for a privilege purpose. If you tell your neighbor that there’s a body in your crawlspace and he happens to be a lawyer, the privilege won’t apply.
In addition to @Schnitte’s answer, with which I agree, there is a third issue. You are confusing confidentiality with privilege. They overlap but are not the same.
Confidentiality is a duty owed by a lawyer - or indeed many other categories of people - to someone (a client for example) not to reveal what they are told. The duty could be owed contractually and/or professionally or otherwise. Lawyers are only one of many categories of professional who owe duties of confidentiality. Duties of confidentiality are commonly trumped by legal processes that compel disclosure.
Privilege is different. Privilege is a lawyer’s client’s entitlement to have (amongst other things) confidential communications remain confidential and usually inadmissible, despite legal processes that would otherwise compel those communications to be revealed.
So to come back to your example, if a client tells me in confidence that he committed a crime, and it is part of my retainer that I won’t reveal anything he tells me, then I won’t. That’s confidentiality. But if the police tried to put into evidence my notes then (depending on the points @Schnitte raises) my client could prevent those notes going into evidence based on privilege (not confidentiality).
Contrastingly, if you as a layperson sign an NDA and/or have some sort of fiduciary duty towards a client that obliges you not to disclose a fact, you may have a duty of confidentiality not to disclose that fact. But you could probably be compelled by process of law to disclose the fact because as a layperson, your client would not be able to claim priviege.
Is that also part of the concept for “fruit of the poisoned tree,” or am I mixing that up with something else?
Say a lawyer breaches the attorney-client privilege and tells the police, “Hey, my client murdered so-and-so, and the body is buried at such-and-such a place.” The police then mount an investigation - but, given that privilege applies, does this mean that eventually the whole thing would be overturned in court on the basis of “the investigation should not have even begun in the first place because it started due to an improper tip” and hence everything that sprang from it would be negated?
How about this? I approach an estate attorney with:
I want to change my will to reflect the untimely death of my spouse. By my hand, in secret, yesterday afternoon.
Some movies or TV shows feature the cliche “give me a dollar - now you’re my client and this is confidential”. To what extent is it necessary to do this sort of formality to establish the lawyer-client relationship and hence privilege?
So all those NDA’s that people complained about in the news (i.e. settle sexual harrassment out of court with NDA attached) can still be bypassed in court under oath? Or was the problem that the NDA still applies when the police question someone during an investigation? Wouldn’t an NDA about a crime be obstruction of justice (suppressing evidence) or witness tampering?
I suppose another important point is that the confidentiality privilege belongs to the client. The client can waive privilege, the lawyer cannot. And the lawyer cannot refuse to testify if/when the client has waived prvilege?
Who “owns” the privilege and ability to waive it if the client has died?
The privilege doesn’t not require that type of formality (but people actually do it)
Attorney client privilege isn’t just related to criminal activity, but includes civil matters as well.
Attorney-client privilege can be applied to a potential client. I might decide I don’t want to take your case, or you might decide you can’t afford me. That doesn’t mean I can then call the cops to tell them what you told me.
(With the exception for future crimes. If you tell me you are going to kill somebody, I still get to warn people).
Probably not. There are other doctrines that would likely allow the ultimate evidence - the dead body, for example - to come in. One that comes to mind is inevitable discovery - the police will claim that they would have found the body based on some other investigation; they didn’t need the tip they used.
But, I would expect that the lawyer’s specific statements (given in violation of the privilege) would not come in at trial. Depending on what the lawyer intends to say, the defendant might be able to prevent them from testifying (or being referenced) altogether.
What if it’s a situation where the client hasn’t said they’ll do something, but they have a clear propensity for doing things?
Example: Someone with a history of elder abuse (known only to the lawyer) tells the lawyer they just got hired by a nursing home. Or someone with a history of poisoning patients tells the lawyer they just got hired by a hospital. Or someone with a history of child abuse tells the lawyer they just got hired by a daycare center. Or someone who has a history of espionage tells the lawyer they just got their security clearance and will handle classified info. Etc. etc.
IANAL but there’s a reason why you can’t bring up a person’s criminal record in a trial.
In the examples cited, “has a history of” suggests the facts are there to discover if the entity doing the hiring had bothered to look.
(Which makes me wonder, if a person is charged but not convicted, does that appear during a background check?)
That probably depends in who is doing the background check and for what purpose. In my state, criminal cases that end in acquittal or dismissal are sealed and cases sealed for any reason will not normally show up on a background check - but they will show up on certain background checks conducted by government agencies. So if a regulatory agency is conducting the background check on the potential nursing home or daycare employee , arrests without convictions will show up.
Which makes me think a lawyer has no obligation to divulge information which should be already available to a responsible third party. But then we get to the more interesting grey area - client divulges he has managed to “fool the system” to get a job he should not have, so that a background check will not associate him with his record. (I.e. change name or impersonate someone else?) I presume this is an ongoing crime carrying on into the future, what’s the lawyer’s obligation now?
I can’t speak for American law, but in English law it is in fact possible to adduce the defendant’s criminal record as evidence (dubbed “bad character evidence”), and the wording used to justify this is that it may demonstrate a propensity of the defendant to commit offences. This is not without restrictions, of course - usually the dispute is whether the previous offences and the one for which the defendant is presently tried are sufficiently similar to show propensity; but the concept exists.
It’s possible in the US as well, but only for very limited purposes. For example, past crimes can be used to show a pattern of modus operandi - a history of robbing post offices with a Colt revolver is admissible, while a history of robbery generally isn’t.
Here’s a hypothetical based on an episode of LA Law I watched last night. Spoilers for a 36 year old TV show.
One patient of a psychiatrist murders another patient he had been in group sessions with. He has confessed & been convicted. The parents of the victim are suing the psychiatrist, because the murderer said he had told his plans to the psychiatrist, including showing him the machete that he planned to use.
The plaintiffs claimed that this situation created an exception to patient confidentiality, and the doctor should have told the victim and/or the police. (The doctor’s attorney was Ann Kelsey if you remember the show)
During the trial, the convicted murderer testifies. During the testimony, Ms. Kelsey becomes convinced he didn’t actually do it - there are discrepancies with his previous testimony & confession, he can’t answer easy questions about the crime scene, etc. The jury finds for the defendant, at least somewhat based on doubt that the supposed murderer was actually guilty.
After the trial, Ms. Kelsey decides she needs to help the murderer get out of prison (extremely typical for her if you watch the show). She asks the doctor, her client, for assistance, including releasing notes from the group sessions to see if another patient may have been the murderer.
The doctor pulls her into a private office, confirms that they’re “still talking in the scope of the atty/client relationship”, then tells her he was the murderer. He had been having an affair with the victim, she threatened to tell his wife, and in the face of losing his career & family, he killed her. He then convinced the other patient that he had done it and should confess.
So the question - does atty/client privilege apply in that case? The case was over, the fact that he was the killer is no longer relevant, and it was a civil trial anyway. I haven’t watched the next episode yet (well, I’m sure I did 36 years ago, but whether there’s a continuation has slipped my memory).
Yes, that’s privileged. The conversation was made within the context of an attorney/client relationship regarding matters reasonably relating to the purpose of the representation.
There is a “crime-fraud exception” to the privilege that applies to information provided to the attorney about crimes the client is about to commit.
The Arkansas Rules of Professional Conduct, Rule 1.6 states in part:
(a) A lawyer shall not reveal information relating to 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 such information to the extent the lawyer reasonably believes necessary:
(1) to prevent the commission of a criminal act;
(2) to prevent the client from committing a fraud that is reasonably certain to result in 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 injury to the financial interest 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 … .
In short, a lawyer may reveal confidential information without the client’s consent to prevent a future crime or to remedy past criminal or fraudulent behavior which was furthered by the lawyers services. This applies to both civil and criminal matters.
Many other states have a very similar rule because Arkansas’s rules are based on the American Bar Association’s Model Rules of Professional Conduct which many states have adopted in whole or in part.