Lawyers and Ethics: The Attorney-Client Privilege
Introduction
The attorney-client privilege is a legal principal that was invented with the advent of law to prevent legal counsels from making known information that was given by their clients in confidence. The purpose of attorney-client privilege was originally designed in order to prevent pitting lawyers against their clients in the unlikely event that would have required them to be witnesses to their own clients (Cyndi, 2008). It is one of the cardinal legal principles that had been around for a long time and which is very hard to circumvent in a court of law. In the legal minefield that exists in today’s modern world, the sanctity of the attorney-client privilege is always under constant scrutiny. Besides the major purpose of the attorney-client privilege confidentiality, another important function of this principle is ensuring that clients benefits from high quality legal advice, which can only be achieved where the attorney has complete details about a case (Cyndi, 2008).
Elements of Privileged Information
According to the case scenario presented, the attorney has only two options; find a reason that would disqualify the information to be privileged and thereby find a basis of reporting the crime. Or determine if the nature of communication qualifies for any of the several options that are legally accepted as exceptions to attorney-client privilege doctrine. There are three elements that must be certified in attorney-client communication for it to be accepted as privileged information which cannot be made public. The person making known the facts must be a client, the person obtaining the facts must be a licensed attorney or a member of a bar and the exchange of communication must be made with intention to solicit legal advice from the attorney (Cyndi, 2008). Based on the case study it seems that the communication between the attorney and client is indeed privilege given that all the three elements have been certified.
Circumstances that would Disqualify Attorney-Client Privilege
Nevertheless, there are three known circumstances that would disqualify communication from being certified as privileged despite the certification of the above conditions. These are presence of unintended third parties who are not legal counsel at the time of communication, statements that indicate intention of committing a crime prospectively and waiver of the privilege by the client whether intentionally or unintentionally (Zarka, 2007). Again based on the case study none of these options seems to apply; hence the attorney has no basis yet that would have disqualified the communication to be privileged and allow the reporting of the murder.
Exceptions to Attorney-Client Privilege
Let us now assess the validity of the attorney-client privilege in the mentioned communication based on the legal exceptions that are generally allowed when it comes to privilege information. There are several exceptions that apply to privileged information between a client and an attorney; therefore we are going to discuss the exceptions that are only relevant to our case scenario. Attorney-client privilege does not apply when a third party is aware of the facts besides the client’s attorney, regardless of whether such knowledge occurred before or after the communication with the client (Zarka, 2007). This is one of the circumstances under which the law waives the principle of privileged communication; however for the attorney to go down this road, it must be determined beyond doubt that the client confessed the same to a third party. One way of finding out about this is asking the client if anybody else is aware of the facts of the murder. If the client says yes the attorney can cite waiver of privilege by the client based on this fact alone and make known the information, nevertheless verification should be in order. This is because the law states that “a waiver may occur even though the client does not intend to waive the privilege” (Silverman, 1997).
Application of the legal Concepts to the Case Scenario
Another factor that would exempt the attorney-client privilege would be the circumstances under which the communication of the information occurred. Legally the law allows exception to the doctrine of privilege where the environment of such communications is deemed to have occurred openly (Silverman, 1997). For instance if the client made known to the attorney the facts of the murder in an interrogation room that had tape recorders. However it must be shown that both the clients were aware of this fact.
Privilege of information does not as a matter of fact extend to physical evidence, the communication of confessing to murder and the whereabouts of the body is what is privileged in this case but not the physical evidence of the body. The attorney is obligated by the law to present physical evidence to the police, it the attorney can separate the two no breach of privilege of information would be determined to have occurred (Zarka, 2007). Finally, breach to privileged information is allowed if the client at any time sues the attorney for malpractice or obtains a new trial based on the incompetency of the previous attorney, assuming this would happen (Zarka, 2007).
References
Cyndi, B. (2008). Criminal Justice Ethics: Theory and Practice. 2nd Ed. New York: Sage Publications.
Silverman, G. (1997). Silence is Golden –The Attorney Client Privilege. Web.
Zarka, H. (2007). The Exceptions to Attorney-Client Privilege. Web.