Law in Contemporary Society

A Problem in Privilege

What would you do if you could save an innocent man from a murder conviction, but had to break attorney-client privilege rules to do so?,0,3767780.story?page=1

-- TedKreit - 07 Mar 2008

I think that from an outside perspective when it comes to the overall needs of the legal profession, this decision makes a lot of sense. If they had broken privilege, not only would they have incriminated their client, but also they would have ruined the trust that countless other future clients would have with their attorneys. However, when I put myself in that situation, I'm not so confident that I would have made the same decision that they did.

-- AndrewWolstan - 11 Mar 2008

  • So far, so good. You can't treat the privilege rules as excepted from on the basis of someone else's interests, or even "the interests of justice." So you can't disclose client confidences or undertake any action putting your client in legal jeopardy. But a lawyer is someone who knows how to solve a legal problem. So how do you solve this one? In other words, how do you think outside the box?

-- EbenMoglen - 15 Mar 2008

I am not sure how to solve the legal problem, because the objectives I understand to be at issue seem somewhat exclusive. Were I in this position, the two goals would seem to be 1) prevent the innocent man from ending up in jail; and 2) prevent your client's admission from affecting his legal situation.

(We haven't studied professional ethics yet, but I would argue that the broad reading of privilege implied by goal 2 is necessary for client privilege to have any real meaning. Privilege could be even more broadly read to not allowing your actions to affect your client's situation in any way, legal or social, but I don't know how strictly it is meant to be construed)

When the innocent man goes to prison, your client has basically no chance of being brought up for the crime. Any action that would leave some chance of your client going to jail would therefore change your client's legal situation. Therefore, if your solution to 1 causes the investigation to remain open without providing immunity for your client, you automatically increase the chances that the crime in question will be pinned on your client, thus defeating 2.

So in order to achieve both goal 1 and 2, you must achieve goal three: 3) Either find a way to get immunity for your client, or make sure the investigation of the crime ends after achieving 1. This seems like a tall order.

Maybe you could work something out with the prosecutor - I don't know enough about how the politics of such things work though, and I can't imagine that the prosecutor would be ready to just drop the case. Compounding the problem is the fact that, according to the article, the client does not seem eager to get the innocent man off, so it might be hard to get his cooperation.

-- TheodoreSmith - 18 Mar 2008

  • Which, when you boil it all down, means you don't know. The duty to maintain confidences is absolute, so long as it does not involve contemplated future criminal behavior, and let us assume that the duty of zealous representation would prevent any step that might result in legal jeopardy for the client. Moreover, you cannot advise or seek to persuade your client to waive the privilege solely because you are pained by having to maintain it. There are still options, however, if you can see them.

-- EbenMoglen - 18 Mar 2008

  • I mean absolutely - I have no idea how to solve the problem. My point was that, because of the apparent necessity of #3, the legal solution appears to depend on a greater knowledge of the practical or procedural workings of the criminal justice system than I have at present. I have no idea how cases are actually prosecuted, or how one would remove a client from legal jeopardy. I would, however, love to hear an analysis of the problem by someone who is more familiar with the criminal system. (This reply is partially a thread bump. Any ideas out there?)

-- TheodoreSmith- 22 Mar 2008

This question has been giving me nightmares. You must, absolutely, keep your client from a possible capital charge and get this other guy out of jail as quickly as possible.

My fist guess is to use your privilege to get as much information from your client as possible about the crime. If you can determine some fact, some clue that, if applied would undermine the state's case against the innocent man without - in any way - implicating your client then perhaps you can use it. The obvious problem is that, presumably, any risk to your client could not be taken and you could likely only share any information with his consent.

I wonder, instead, if there is some way to leverage the particular circumstances to convince the DA that further incarceration of this man is politically imprudent. Basically, would he/she rather lose a case/release someone wrongly convicted after a short time in prison, or be forced to do so years later when, presumably, the harm is greater and the publicity more damaging? Perhaps some kind of deal can be made where any punishment that your client (who already plans to die in jail) might receive would run concurrently to his sentence in exchange for the information. If your client agreed, then this might work. This seems pretty wrong, however, because even deals can be broken and this course forces you to put your client in harm’s way.

It is not even something that you can just trade your license for, since, as I understand it, breaches of privilege aren’t admissible as evidence.

Someone in this class can figure this out, though, I am sure.

-- AdamCarlis - 23 Mar 2008

You can't prove the innocence of the other man because that immediately begins a search for "the real killer." Since the real killer happens to be your client, it puts you in a difficult position.

But proving this man's innocence isn't the only way to get him out of prison. There are procedural issues that could possibly be raised about his past trial on appeal. If the innocent man can win on appeal, the final court can reinstate the original conviction or dismiss, but they cannot order a new trial. Assuming you do find a procedural problem, his case would be thrown out. Not only would it be thrown out, but the prosecution would be fuming that a "stupid technicality" is putting a guilty man back on the street. They would not spend any time looking for the true guilty party.

Knowing that this man is innocent, you should probe back into the evidence, the jury, the investigators (wasn't the detective apparently torturing people), the defense lawyer at the time. All you need is one procedural error, and considering that an innocent man was found guilty, that may be easier than you might think. Surely, you shouldn't represent this man on appeal, but I'm sure someone else could if you showed them the issue you were now looking at.

If you don't find an obvious procedural problem, you might have to create one. Find the power in the DA's office and see what he/she needs kept quiet or what kinds of favors he.she might need. Maybe this person has political aspirations that you could help them out with somehow or maybe this individual doesn't want people finding out about the high priced escort he/she likes to frequent. This may be a bit distasteful, but it could help solve your legal problem. Plus, I think it's pretty obvious by this point that criminal defense can be a little vulgar at times anyway.

-- ChristopherBuerger - 24 Mar 2008

It would have to be more than a procedural problem, since those occur in practically every case. It would require a prejudicial one. I think you are right that such a find would be gold, but I think you are overestimating its likelihood. It seems this guy was sent to jail, not for a procedural problem, but because three eye-witnesses were mistaken/lied and the jury did not credit the man's family who provided the alibi.

I do agree that, given the information we have, something more akin to your second statement is in order. I fear, however, that now that we have been introduced to Robinson, this will appear to be the solution for everything!

-- AdamCarlis - 24 Mar 2008

I don't think we should assume that, "You can't prove the innocence of the other man because that immediately begins a search for "the real killer." Since the real killer happens to be your client, it puts you in a difficult position."

This is a little similar to assuming that helping one person study for a law school final will inadvertently hurt your grade. If you can help the DA realize the man is innocent, or help his attorney prove his innocence, without directly implicating your client then you're in the clear. They may be searching for the real killer, but your client remains a member of the general population as far as anyone knows.

I may be wrong, but i don't think that zealous representation requires destroying any probability that your client is prosecuted. If you can save one man without directly implicating another, that may be the best case scenario.

-- OluwafemiMorohunfola - 02 Apr 2008

I have made this problem the topic of my second paper. Thoughts are welcome either on this page or the other one.

-- TedKreit - 04 Apr 2008



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r12 - 22 Jan 2009 - 00:37:12 - IanSullivan
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