Legal privilege - how far does it really go?

Prompted by a rerun of The Practice wherein the lawyers often plead privilege in the most dramatic of circumstances.

On one occasion a client confesses to his lawyer that he is a serial killer. His latest victim has been found dead in the trunk of his car, but, naturally, as the cop who stopped him didn’t have probable cause to search, the judge dismisses the case. (They didn’t say whether the corpse was returned to him!)

Anyway, he then comes back to his lawyer and tells her that he’s strangled a young girl, he’s not sure whether she’s dead or not, he’d like her to check it out. She does so; the girl is dead. The parents are meanwhile desperately pleading for their daughter’s return on TV. She gets his permission to let them know that the girl is dead, although she can’t say how or where the body is. The parents inform the DA, the lawyer is hauled before a judge, the judge orders her to break privilege. She refuses, and is thrown in the hoosegow for contempt, although not for long. They let her out, even though she still won’t tell. Meanwhile the cadaver of the girl slowly festers while her killer sits at the bedside looking lovingly down at her.

This being TV, matters soon resolve themselves, but not at the cost of the lawyer breaking privilege. This show, and others, ring the changes on privilege through all sorts of grotesque situations. My question is, how accurately does this reflect reality. Is privilege really so absolute in the States?

IANAL just a law student…

What we are taught is that the attorney client privilege is sacrosanct. Every state has it’s own rules regarding privilege but taken on the whole there is a strong judicial presumption to broadly construe and uphold privileged communications. The rationale of course is that without privilege individuals would be discouraged from seeking legal counsel and from revealing all information relevant to the fair and complete adjudication of a case.

That said, there are exceptions: Under Rule 1.6 of the ABA Model Rules of Professional Conduct an attorney is permitted to reveal information regarding crimes, “likely to result in imminent death or substantial bodily harm.” I think a serial killer on the loose falls under that exceptions.

An actual lawyer will undoubtedly be along momentarily to correct me if I’m wrong, but I don’t think it would, unless the SK in question told the attorney the specifics of an upcoming killing. If the SK simply tells the lawyer that he’s an SK, or even tells the lawyer specifics about past crimes, the lawyer is bound by privilege not to reveal the information.

Otto’s exactly right.

The lawyer-client privilege seldom come up is so dramatic a circumstance, although I think I remember a case in New York State years ago where the lawyer knew where the body was hidden. Usually it come up in a commercial or social situation when the lawyer has been told something in a professional capacity that could help another client in a business transaction (like for instance that the local bank is going to change ownership) or could make for great gossip (like the messy details of a leading citizen divorce). Just as in the case of the hidden body, the duty to keep your mouth shut is absolute. A violation of that duty will inevitably come back and bite you in the butt. The last thing any lawyer needs is a client that thinks his confidence has been violated. The point has to be very firmly explained to staff, too. A blabbermouth secretary or clerk or assistant can cause big trouble. Generally it’s pretty pedestrian stuff but it is still important. Each and every client must know that his confidences, no matter what they are, will be guarded.

This lays out the details of the rule pretty well. Here is the punchline:

*Id. *

I wonder about this sometimes. Since I don’t do this kind of defense work, it’s not really a risk for me. And I’ve made my peace with defending people who’ve allegedly committed despicable crimes. But solid proof that a client is a serial killer and – most importantly – will probably kill again unless I figure out a way to stop him? I don’t think my career is worth that much. The real question is whether the system is worth it, even when I agree that the system is worth keeping confidences in the run of cases.

–Cliffy

Yeah, that’s a tough one. I don’t know how these guys did it: http://law.gsu.edu/ccunningham/PR/Garrow-NYTimes.htm; http://www.crimelibrary.com/serial_killers/predators/robert_garrow/11.html.

I’m not a lawyer and I support the confidentiality rule. The lawyer needs to know as much as possible in order to avoid surprises for one thing. However, having a serial killer tell his attorney that he is one must be such a rare event for any one lawyer that it could hardly affect the trust other clients would place in him or her. Even though it’s rare, when it happens it’s damned serious. Maybe an exception in this case would do more good than harm.

But if we create an exception for that rare case, we’ve done two things: violate the privilege merely because of a moral judgment that serial killing is “damned serious”; and made it unlikely that a serial killer will seek legal help. Is serial killing serious? Sure. So is rape, and embezzlement and lots of other stuff. The point of the privilege is that you can’t peek behind the curtain at all, unless the lawyer is participating in a crime or fraud with the client. Even then, you cannot violate the privilege unless you can demonstrate participation in the crime or fraud without using any privileged information to do so.

Here’s the other thing: in California, at least, there is an exception to the attorney-client privilege in instances relating to death or substantial bodily harm, under Rule of Professional Conduct 3-100:

So, if my client the serial killer tells me he is going to kill Cliffy on Tuesday at noon in the library with the candlestick, and I believe him, and my belief is reasonable, among the things I can tell my client in trying to advise him against such a course of conduct is that I am permitted to reveal what he’s told me so as to prevent the crime. I think that’s a sufficient protection. I don’t think all states have the same rule. I suspect that some make it mandatory to disclose, and I suspect that others make it mandatory not to disclose.

Bottom line, I’m not in favor of making exceptions to privilege such that if the client commits a certain type of crime, a lawyer must disclose that. (Yes, Sarbanes-Oxley, I’m looking at you.) I think that does a disservice to the public as a whole, because the whole point of privilege is that it permits a client to conform his behavior to the law without fear of getting in trouble if he crossed a line in the past.

As to the OP, The Practice is crazy. One time, they made Rebecca a partner in the firm. She wasn’t even a lawyer at the time, and I don’t think they even knew she was planning to become a lawyer!

I see the problems. I think that you can reasonably infer that a future crime would be prevented in the case of a serial killer. However a lot of rapists are serial rapists; muggers are serial muggers etc. so another idea down the drain.

The legal system is set up (mostly) to punish acts, not propensities. So, for example, except under limited circumstances, you can’t introduce evidence at trial that the defendant killed someone before. Similarly, the mere fact that there might be a statistically significant likelihood (don’t know that there is, just saying if) that a serial killer will kill again doesn’t mean that this particular serial killer actually will. California’s rule – permitting disclosure to prevent the death of a specific person – I think finds the right balance between protecting the privilege and preventing crime.

Northern perspective: The Canadian Bar Association’s Model Code of Conduct has a similar rule, providing that privilege may be broken to prevent a future crime, and making it mandatory to disclose a realistic threat of future crime involving violence:

Distraught father contacts his lawyer, to advise he has settled on ‘another solution’ to the current matrimonial dispute and that no further legal advice will be necessary.

I know of 2 ocassions where this set of events has given a lawyer cause to breach Legal Professional Privilege.