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Tuesday, April 29, 2008

The (Attorney - Client) Confidence Game

I haven't posted for a while. Been suffering from shingles. No, I didn't fall off the roof. In between scratching & moaning, I've been reading. Last Sunday, a New York Times article caught me deep into the National Section, at page 22, a typical placement for this kind of trivial headline: "Confession Revealed, Freeing Prisoner of 26 Years."

The situation is very weird. Seems that another guy confessed to the crime to his lawyers, but they didn't reveal the fact in public until their client died. Now they've come forward and disclosed the confession. So the wrong guy was convicted and kept serving time years after someone else confessed to the crime.

So, is this justice? The lawyers for the confessing client had a dilemma. What he told them was in confidence, covered by the attorney-client privilege. A lawyer cannot - must not - under pain of disbarment - disclose such confidential information to anyone without the client's permission. Understanding their obligation as well as the problem this information would lead to, the lawyers wisely prepared affidavits containing the detailed information their client confessed to UNDER SEAL - not to be opened until their client died.

There are cases which say that the confidential communication privilege doesn't survive the death of the client. But there are other cases that say otherwise.

Vince Foster, an official in the Clinton administration, was under investigation as part of the so-called Travelgate scandal. He had hired and consulted with an attorney and was under pressure by Ken Starr, the (so-called) Independent Counsel. Foster committed suicide. Starr then sought to interview Foster's lawyer to find out if Foster or others (read Bill & Hillary) had committed crimes or if Foster's death was homicide.

The Supreme Court eventually upheld the attorney-client privilege. The idea of the privilege, which has existed in the common law for centuries, is to encourage a free flow of truthful information between lawyer and client. If the client thinks that what he tells his lawyer will be disclosed, he will ( shudder) lie to or withhold facts from his lawyer. The Supremes observed that many clients would not want their confidences revealed even after death and that was an interest worth protecting, even if it causes "injustice" or incovenience to the cause of justice.

The privilege is not without exceptions. It is now established that it doesn't cover future violent crimes. If the client tells his lawyer he intends to commit violent crimes, the lawyer has a duty to disclose that. I've always resented this. It kind of discriminates against us criminal lawyers. I mean, clients planning non-ciminal transactions can consult their lawyers. I'm waiting for the client who calls me in whispers: "Hey, Mort, I'm in a bank and I want to rob it. What should I do?"

In reality, contrary to public opinion, most clients do not confess to their lawyers. They confess to the cops, to their homies, to everyone in the jail - but they deny guilt to their lawyers. This is mostly because they fear their lawyers won't fight for them unless they believe in their innocence, not because they fear the lawyer will tell on them.

I have friends who never ask their clients if they're guilty because they don't want to be hampered in their defense. I can't deal with that fantasy. I always grill my clients until they confess to me or at least until I'm pretty well convinced of their guilt. My reason is partly selfish: it's bothersome to defend innocent people - the pressure of losing the case when the client is innocent is too intense. Its comforting to defend guilty people.


  1. Your comment about your clients confessing to everyone but you reminded me of an imagined dialogue between public defender and client that I saw on another blog:

    Client: "I never told the police I did anything!"
    Me: "Did you give them a statement? They say you did."
    Client: "No way! I know better than that!"
    Me: "Then what is on this tape that I got? The tape that says 'defendant statement'?"
    Client: "I don't know."
    Me: "Well, here's the transcript. This is what they say you said on this tape."
    Client: "I never said that. They faked that transcript. I bet the tape is blank and they will say there was a problem with copying it."
    Me: "Well, I've got a tape player. Let's give it a try."
    Client: "Uh....ok."
    tape starts playing
    Client: "That's not me."
    tape continues with client giving name, birthdate and SSN
    Client: "Well, they didn't read me my rights! I didn't know I didn't have to talk to them!"
    tape continues, Miranda, and "you understand you don't have to talk to me, right?"
    Client: "Shit. I didn't know they were recording that. I was just trying to go home. None of that is true. They can't use it if it's not true, right?"

  2. True and a prime example of "Borenstein's Law, no different from "I did not have sex with that woman," "I am not a crook" and many other assertions. On the subject of this post, see a very well written Op/Ed piece in the NY Times, May 4, 2008, The Nation, "Whe Law Prevents Righting A Wrong." It discusses the dilemma of maintaining the privilege after death of the client.