Let’s assume a man approaches a well-respected criminal defense lawyer and asks for a 4-hour legal counseling session. The man is able and willing to pay in advance for the services the attorney is about to provide. The lawyer agrees. Then the man proceeds to explain that he intends to kill his wife next month. He is confident that he will be able to commit a perfect murder, however, he wants to make sure that he has a thorough understanding of all the legal aspects.
What would be the attorney’s reaction? The attorney, again, is well-respected and certainly doesn’t want to be criminally liable himself and/or be disbarred for his actions. Would the lawyer:
(a) Throw the man out of his office and don’t talk about the conversation to anybody?
(b) Throw the man out of his office and immediately call the police?
In the OP’s scenario, no fraud or crime has yet been committed, so lawyer-client privilege is still in place. The lawyer still cannot disclose the conversation, until and unless a fraud or a crime is actually committed.
If I ask my lawyer “What would happen if I lie on the stand?”, he is not obliged to run to the judge and say “My client intends to commit perjury”.
Would it be any different if the client phrased his questions as hypotheticals? E.g. “If someone were to commit murder with a knife and then bury the knife ten feet under their backyard, would an ordinary search warrant targeted at the house permit police to dig that far down?” or “If I were charged with murder, chose to take the stand, and denied it, could my testimony be rebutted under local evidence rules by presentation of ballistic evidence to the contrary, or would it stand absent a direct eyewitness that could contradict me?”
Or, what if our wannabe criminal pretended to be a detective novelist and wanted information on local law in order to write a good Podunk murder story that won’t be criticized and torn apart on the CS board? After all, why didn’t the author know that Podunk law treats possession of an unregistered handgun as a presumption that the possessor intends to commit a felony and permits a cop to perform a warrantless search?
Look to your local jurisdiction’s rules of ethics.
In Ontario, the relevant Rules of Professional Conduct states that knowledge of impending harm to others is one of the rare situations in which a lawyer may break the rule that, in general, a client’s information is to be kept confidential.
The correct route under this rule would be to contact the court for authorization (if practical) or call the police (if calling the court was not practical), giving them sufficient client information to prevent the crime.
Edit: the trigger is “resonable grounds that there is an imminent risk to an identifiable person or group”. A guy claiming to research a novel may, or may not, provide “reasonable grounds”, depending on how ‘thin’ the facade he presented was ("So, hypothetically, if I was to murder my wife for the insurance money … and my wife had a policy like this … ".
(b) A lawyer may reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law, to the extent the lawyer reasonably believes necessary for any of the following purposes:
(1) to prevent reasonably certain death or substantial bodily harm;…*
Despite all the winking-and-nodding of “hypothetical questions,” no reasonable lawyer in that situation would think anything other than that the client intended to commit a murder. If I had such a client, I wouldn’t want complicity in a murder on my conscience - or to quite possibly be prosecuted and ultimately lose my license for such complicity. I would strongly advise my client not to commit any crime, to ask me no questions about committing such a crime, and advise him that I would call the police if he did so again.
This will crash head-on into “prior restraint”, and the lawyer had better be prepared to present sufficient evidence that the imminence of a crime outweighs confidentiality.
In California I was taught in law school that I had to report him to the police and warn the victim. I do not do criminal law, so I can’t say that I remember this correctly from 30 years ago or that it hasn’t changed, but I’m pretty sure it is still the law. Same law applies to mental health (and health) professionals and clergy.
In the OP’s scenario the client didn’t represent it as a hypothetical. He declared an intention to commit murder. The attorney as an officer of the court has an obligation to report it in most if not all jurisdictions.
In Ontario, the suggestion in the Rules is that the lawyer obtain a court order (assuming in the circumstances it is practicable - if the plan is “I want to murder my wife tonight”, obviously it isn’t, due to time constraints). Do that, and the lawyer is covered.
In some states, a client’s intent to commit some kids of harm requires or permits some professionals who normally maintain the client’s privilege or confidentiality to make a disclosure to authorities.
A murder that has not been committed is not a murder. Prior restraint is to restrict the rights of a person who has not committed any offense, which is everybody involved in a murder that has not been committed…
OK. That’s not what prior restraint means, but I understand what you’re saying. It’s not an accurate statement about the way the law works - especially since there’s no right to attempt a murder - and I think it’s bad policy.
At any rate, like susan hinted at, attorney-client privilege is a creature of fiction. We certainly have the ability to modify it in situations where it doesn’t serve us effectively. A situation where a murder that could have been not a murder ends up being completed because we have a rule that says we have to say “let’s wait to see where he’s going with this” is just such a situation.
