Where the entire attorney-client relationship is embarked upon in furtherance of criminal activity, and the relationship is permeated by criminal activity and the client takes an active part in it, the crime-fraud exception is satisfied notwithstanding that it may have been the attorney who originally conscripted the client for the illegal purpose. In re Impounded Case (Law Firm) (1989) 879 F.2d 1211, 1213-14.
Yes, that is exactly my point. There is no privilege for prospective crimes. None. But you can confess to a past crime privately with your lawyer with full confidence that you own a valid privilege. You can’t have a consigliere help you figure out how to get around criminal laws, but you can confess to what you’ve done in the past without risk.
The section you cite still unambiguously refers to planning future crimes, not past crimes.
Bricker, they couldn’t rely on priest-penitent privilege because there is no priest-penitent privilege here. The many and various prosecutions proceeded without the defendants being able to rely on priest-penitent privilege.
The closest we come to such privilege here is as correctly set out by Northern Piper above; we use the Wigmore test, which is not specific to any particular type (e.g. doctor-patient or priest-penitent): http://csc.lexum.umontreal.ca/en/1991/1991scr3-263/1991scr3-263.html
Whether the priests and the bishop knew of each others’ kiddie diddling by disclosure to each other with the confessional or without, I do not know, and by the nature of priests not disclosing what is said in a confession, I doubt if this question will ever be answered. But I don’t believe for a second that the priests did not know what was going on.
When the priest Lahey was reported in 1989 by a child for showing the child porn, a Royal Commission was investigating the Mount Cashel Orphanage. That investigation was just the latest in a series of investigations that had started in 1975, pertaining to child sex abuse by the priests that had been going on for decades, which over the years resulted in many convictions of priests and support staff, and established what can only be described as institutional child abuse by the Church’s priests. Just this fall, Lahey, who then as a Bishop represented then Church in the primary civil settlement, was arrested for being found in possession of a large collection of child porn just days after the settlement. Mount Cashel Orphanage - Wikipedia
Yes, it is possible that all these priests and support staff over all those decades were each individually going about sexually molesting children without communicating what they were doing with each other, but what are the odds? Slim. Similarly, it is possible that none of the miscreants confessed their deeds during all these years to either their co-diddler preists or to non-diddler priests, but what are the odds? Slim. The question then is if in all probability the matter was known and discussed, why did the Church not act in an appropriate manner, bearing in mind that the fellow they had taking care of the problem was just nailed for being part of the problem, and had been outed as far back as 1989?
What it comes down to is that the Church exercised its power over the orphans according to its own policies which were not even remotely sufficient in protecting the children from sexual abuse by its own priests and its own staff on an institutional scale. Given the scope and severity of such a problem, I believe that there should be no priest-penitent privilege, and that instead anyone seeking privilege of communications analogous to priest-penitent privilege should have to stand the Wigmore test on an individual basis.
In the case cited (the Impounded Case), the charges that led to a partial waiving of privilege were for not just ongoing but also past crimes. The lawyers and clients were caught in bed together. The lawyers tried to assert privilege on behalf of their clients with respect to the charges the lawyers were facing. The charges were for both past acts and ongoing acts, and the information that the court did not keep privileged pertained to past acts as well as ongoing acts.
You think that a bishop who helped cover up child molestation would have turned the guilty parties over to the authorities, if only there wasn’t that pesky priest-penitent privelege?
Plenty of people knew about the abuse. It wasn’t like the only way to find out about it was if a guilty priest told you in a confessional booth. The church authorities protected the priests, not because they thought they had a duty to protect the seal of the confessional, but out of sheer institutional loyalty.
So I have absolutely no idea what you imagine the relevance of a legal priest-penitent privilege is to the abuse scandals. As you say, in Canada there is no such legal privilege, yet the sex abuse scandals happened there anyway. And in the United States, how were prosecutions hampered by the existence of the privilege? And as you say, there’s no way all those church officials were going around abusing children without others knowing of it. And what does the confessional have to do with that?
If the only evidence against a criminal is that he might have confessed his crime to a priest, and therefore we should subpoena the priest and ask him if the criminal confessed to him, there’s not enough evidence to subpoena the priest in the first place.
Simple. Not all priests would collude with penitents if they were not bound by confidentiality. Not having priest-penitient privilige makes it that much easier to get at the truth when the evidence is held by a priest sitting on the fence trying to decide whether to breach confidentiality or break the law. It puts the priest on the spot rather than making it easier for the priest to keep silent.
But what makes you think that there was any sort of collusion between priests and penitents?
It doesn’t seem to me any such evidence exists. It wasn’t like the only people that knew about the abuse were the abusers’ confessors. A priest’s boss in the church heirarchy is NOT his confessor.
Look at the many priests involved and the decades that the orphans were being abused. The priests had to be confessing to a number of priests. It was institutional child abuse, not an occasional problem priest here or there. Whatever the confessions did to make the priests right with their maker, the confessions did not protect the children from being abused. I don’t think a cone of silence should cover up ongoing child sexual abuse. The Roman Catholic Church and its priests at the orphanage took a different position. The results speak for themselves.
And again, what does that have to do with our legal system?
The priests were protected, not by their confessors, but by the church hierarchy. The code of silence had nothing to do with the confessional, and I can’t understand why you think it did.
You do know that if a priest’s boss or co-worker found out he was molesting kids, the boss or co-worker can be forced to testify in any future case against him, even if that boss or co-worker was another priest, right?
The fact that the people who covered up the abuse scandals were priests and church officials is irrelevant. They could be compelled to testify. The problem wasn’t that they were legally untouchable, the problem was that the authorities didn’t know there were crimes to prosecute–because church officials covered up the crimes.
And church officials didn’t cover up the crimes because they had been confessed under the sacrament–because, again, the people who carried out the coverups weren’t the confessors of the abusive priests, but their bosses.
What do you do next? Go to the cops, I guess. But suppose I’m your buddy? You don’t want me to go to jail, or have my reputation blackened, just because I set a hobo on fire one time. OK, a couple of times.
So because you’re my buddy you don’t go to the cops. In fact, you remind me to get rid of the gasoline-soaked rags, and such. You help me cover up my horrible crimes.
And many years later, I get picked up by the cops. And they find out that you knew about the crimes, but did nothing, and in fact helped me get away with them.
And the cops are shocked. “Surely you knew that any confession Lemur made to you would have no privilege under our legal system. You aren’t his priest. So you could be forced to testify about anything he told you.”
And you look at them funny. Because for one, you didn’t find out about the hobos because I confessed to you. And second, the idea that you should turn in your-hobo-charring buddy just because you were legally obligated to do so makes you laugh.
And the thing is, the people who covered up the abuse scandals were in the exact same position as you, in the scenario I made up.
Why did that priest, taking confession from a youth, not report the abuse? That was a confessor covering up abuse. That sort of behavior should be hunted to ground.
Two wrongs don’t make a right. Using the confidentiality of the confessional to cover up such abuse is unacceptable to me.
Could the confessor have reported the matter, and followed through if the report was not acted upon? Yes. His vows as a priest did not physically stop him. His personal choice was to remain true his vows rather than to make serious efforts to stop the abuse.
This took place in CANADA. Where, as you say, there is no priest-penitent privilege.
And you’re so angry about this, that your solution is…to revoke the priest-penitent privilege.
Clearly, in Canada, the abuse continued quite easily despite the remote possibility that if a priest was ever called upon to testify to what he heard during confession, he might be legally required under some circumstances to testify about what he heard.
Of course, a priest who’d happily cover up child abuse would never think to simply lie about it–he’d be under oath!
You’re not angered by the legal right of priests not to testify about what they hear in the confessional.
You’re angered that priests promise to keep what they hear in the confessional secret, because what if they hear about something horrible? They should tell what they hear, if what they hear is bad enough.
But thing is, that confessor who heard about abuse, and simply told the kid that he hadn’t committed a sin if he didn’t enjoy it?
How would it have changed anything if that priest could have been made to testify about what he heard.
It wouldn’t have changed a thing. Because that priest really could have been required to testify, because this happened in Canada.
In the United States, if a person told his lawyer he had committed crimes of abuse exactly like the ones you describe, his lawyer would not be permitted to share that information either. Indeed, if the information eventually came out through other means, the lawyer would be obligated to zealously defend that person, and make every legal effort to ensure that the person wasn’t punished.
Is this also unacceptable to you?
And I’ll second Lemur’s point: your proposed solution is to eliminate the privilege, yet the events you’re complaining of occured in a jurisdiction that doesn’t have it… which supports the point I made above: odious abuses these were, but they had ZERO to do with the confessional.
Here’s what I think the relevant portion of the case is that you are referring to: “We recognize some resulting erosion of the attorney-client privilege but we think societal interests outweigh that protection here. Furthermore, disclosure can be obtained only in a context where the district court will first evaluate, in camera, the right of the government to gain access to the documents. See United States v. Zolin, — U.S. ----, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989). This assurance tends to confine the invasion of the client’s privilege to materials pertinent to criminal prosecution of the attorney alone. We do not deem the price too high.”
This would suggest that the court is reducing the privilege. But look at the instructions a few paragraphs down for a clearer explanation:
“The government and the district court appear to believe that the probable cause showing to obtain the search warrant triggered the application of the crime-fraud exception without more, except in the very narrow circumstance noted. We think the district court’s expansive reading of the crime-fraud exception here takes too narrow a view of a client’s privilege. We believe that if the client is not implicated in criminal conduct the privilege obtains unless a document is pertinent to the accusation of criminal activity by the attorney alone. Our conclusion is consistent with the proper scope of the privilege and its limitations.”
Which looks to me to be a remand in favor of the privilege except in the instance where the attorney and not the client engaged in criminal behavior.
Now, I’d admit I was partially wrong on this based on the language above, but my claim was about the privilege in California criminal context. So call this weaseling if you want to, but this case interpreted Federal law, not California law and the Federal privilege. Given its broadest reading, the Court is saying that if the client is not also implicated the privilege can be abrogated under Federal law and used to convict a lawyer for the lawyer’s conduct that does not implicate the client. That is most definitely different than California law, which is that the client’s communication that has nothing to do with a crime he is going to commit is sacrosanct if it is not in furtherance of a crime. The crime fraud exception does not apply in California unless the client is benefited in the future. For example, if the lawyer where to say: “I’ve seen this before, and I will use a method I was not sure was legal (implying possible criminality) to get you out of it.” Client has plausible deniability that he knew anything criminal was going to be done. Lawyer does not. Now normally both the client and lawyer are going to be charged and the client will have incentive to waive the privilege to turn on the lawyer. But without that charge of fraud against the client, I don’t think that in a criminal case this is going to pierce the privilege.
Two further problems: this looks like future crimes, not past crimes. Second, the case does not give us an adequate factual picture to determine what was going on.
In general, I find the confidentiality rules a little too broad. That’s one of the reasons (although not the primary one) I got out of criminal law early on.
If it became obvious that my client was seriously abusing a child, then yes, I would report the client. Fotunately, the rules of professional conduct where I practice prermit this, but as The Second Stone would be correct to point out, only on prospective basis. I think the confidentiality exclusion for matters of serious harm should be broadened. For example, if a client were to believably tell me that he abused many children on a regular basis in the past decade, I would want an exclusionary rule broader than the one that currently applies to me, so that I would not have to dance about the question of past verses prospective – and yes, in such circumstances I would report on the basis of his conduct up to the present being a clear indication of future behaviour. Quite simply, a person’s life or health is very important to me, so I am uneasy with blanket applications of professional conduct confidentiality regulations or evidentiary privilege regulations that would obviously put a person’s life or health at risk. Thus I try to keep clear of clients and cases that might put me in such a conflict between my personal ethics and my professional obligations.
Lemur, your argument boils down to ‘if the gang of bad guys won’t come clean, then a confidentiality or privilege exception would be useless, so let’s not have such an exception.’
My argument boils down to ‘if the gang of bad guys won’t come clean, then a confidentiality or privilege exception might make the difference when dealing with one of the bad guys who is sitting on the fence and might be turned, so let’s have such an exception.’