Dilemmas within Attorney Client Privileges Quamere Rooks Saint Leo University Abstract The most basic principle underlying the lawyer-client relationship is that lawyer-client communications are privileged, or confidential. This means that lawyers cannot reveal clients’ oral or written statements to anyone, including prosecutors, employers, friends, or family members, without their clients’ consent. It doesn’t matter whether defendants confess their guilt or insist on their innocence, attorney-client communications are confidential. Both court-appointed lawyers and private defense attorneys are equally bound to maintain client confidences. This paper addresses the issues that attorneys could possibly face involving the …show more content…
confidential information exchanged between them and the client. In the case that an attorney is confronted with information disclosed during an attorney-client meeting, is it okay to use this information, regardless of the regulations preventing this behavior? Thinking morally would suggest that this information, no matter its relevance to the case, should be communicated with authorities regardless of policy. I will provide general information regarding guidelines pertaining to the attorney client privilege, as well as referring to factual cases to give further insight on this matter. I conclude that even under these circumstances, confidential information discussed between the attorney and client cannot be disclosed. Dilemmas within Attorney Client Privileges The court has appointed an attorney for an alleged murderer. During one of the attorney - client meetings, the accused discloses the fact that one week ago he abducted a five year old boy from a local playground, murdered him and buried the remains behind his house. After the interview with him, an article is observed by the attorney in a local newspaper where a mother is pleading for information about her missing son. If the attorney was to reveal this information it would be breaking a policy and the individual could be disbarred. How is one to handle the situation? In the American legal system there is the idea that attorneys should provide special respect to confidential communications between a client and attorney.
The American Bar Association officially endorses the theory that “preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private” (Asociation, 2015). Confidentiality is highly valued in the legal system through the courts’ acknowledgment of privileged communications between attorney and client. This means that an individual cannot be forced to testify on any information exchanged during these communications. Confidential information is to remain confidential throughout the representation, and thereafter, even after the death of the client. Along with the basic principle of maintaining the privacy of client information, a key principle of ethically maintaining confidentiality is that the information not be used to the detriment of the client, but rather only to advance the client’s interests. Even information gained about the client after the representation has concluded is to be kept confidential. With this privilege allowing individuals to basically conceal certain facts, it is important to understand the circumstances under which this can be …show more content…
utilized. The assumption that this privilege is provided to those communicating any and all information to an attorney, is not accurate. There are specific situations and guidelines that limit the information that is deemed confidential and that which can be revealed. The privilege itself varies among different court jurisdictions in the country, but there is a standard principle to refer to. In simplest terms the attorney-client privilege protects communications between an attorney and client made for the purpose of providing legal services, but most interpret it according to a 1950 Massachusetts District Court case, which provides an overall guideline to assist with comprehension. Edward J. Krauland and Troy H. Cribb (2003) displayed the summarized standard in whole which states: “The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or is his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion of law or (ii) legal services (iii) assistance in some sort of legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.” (p.2) Fully understanding how the privilege works and when it is applicable is vital to an individual planning on taking the role as a representative for a client. In this particular situation the attorney is faced with information that directly links their client to another crime. There are exceptions that do apply as to when you can disclose information communicated in a confidential meeting, but in this particular scenario no information would be able to be revealed by the attorney. The exceptions to the confidentiality rule vary somewhat from state to state and reflect different weightings of the balancing process between the several public goals involved (Michmerhuizen, 2007). Most jurisdictions make a specific exception in their ethics rules to permit disclosure that will prevent death or substantial bodily injury. In addition, the ethics rules in most jurisdictions permit and sometimes require a lawyer to disclose information in order to prevent the consequences of a crime or fraud that injures the financial or property interests of another. The only way to reveal the information would be to prove that the client is seeking consultation to plan a crime or tort (Hazard, 1978), which in this case he is not. The crime has been committed and there is no reasonable assumption that another was going to be planned. As an attorney, it is important to represent your client in the best way possible no matter what crime was committed.
As a result of the ethical requirement that a lawyer must always zealously represent a client's goals, in the criminal justice system in particular, the attorney has to be firmly on the client's side at every step. This is because they are the only people in the courthouse whose sole purpose is to advocate on behalf of the defendant. No matter what morals you have or beliefs, as an attorney your main focus is the interest of your client. Keeping information deemed confidential in a client meeting private, is just as much of an obligation as defending the client in court. I do understand the amount of guilt and regret that could be placed on one’s mind if they had to conceal something so horrific, but that is what comes with the profession. A strict business mentality has to be taken on by an individual and all emotions have to be released in order to successfully complete the task at
hand. References Asociation, A. B. (2015). American Bar Association. http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_preamble_scope.html Crauland, E. J., & Cribb, T. H. (2003). THE ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES. 1-15. Hazard Jr., G. C. (1978). An historical perspective on the attorney-client privilege. California Law Review, 66(5), 1061-1091. Michmerhuizen, S. (2007). Confidentiality, Privilege: A Basic Value in Two Different Applications. . Center for Professional Responsibiltiy, 1-3.
Most of these defendants couldn’t afford private attorneys and depended upon public defenders. For instance, Joe Moore had two prior convictions and was facing a maximum of a 90 year sentence for selling three grams of cocaine. However, Moore begged his public defender to call Eliga Kelly to stand in his defense. Moore claimed that Kelly witnessed him shoe Coleman off of his property. For whatever reasons, his public defender never bothered to call Kelly to the stand or even question him privately. After all, Eliga Kelly was considered a star witness for the prosecution, but, as a result of that negligence, Moore was sentenced to 90 years. Unlike most criminal informants, Eliga Kelly refused to lie under oath and in a subsequent trial for a different defendant, the prosecutor called Kelly to the stand. Kelly contradicted Coleman’s testimony by naming several defendants, including Joe Moore, who refused to sell drugs to
A Paralegal is defined by the American Bar Association as a person, qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible. Paralegals work under direct supervision of an attorney and follow the same ethical rules of the ABA as a lawyer does. ABA Rule 5.3, states that a lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. Per the State B...
The job of a criminal lawyer is quite difficult. Whether on the defense or the prosecution, you must work diligently and swiftly in order to persuade the jury. Some lawyers play dirty and try to get their client off of the hook even though they are guilty without a doubt. Even though the evidence is all there, the prosecution sometimes just can’t get the one last piece of the puzzle to make the case stick and lock the criminal up. Such is the case Orenthal James Simpson.
Additionally, it expressed that deciding in Redmond’s favor will ultimately serve the public’s interest, as this hearing would set a precedent for similar cases in the future. The association further asserted that clients’ who confide with therapists expect that their revelations will remain private, and it is this trust that fosters the open communication that doctors need to heal patients. The APA felt that, at the end of the day, confidentiality outweighed any other matter at hand. They also believed that judges’ jurisdiction to decide confidentially matters individually did not provide the protection that patients needed to feel safe revealing potentially incriminating, but critical, information.
people in these 21st century society wonder, “When is Justice to be done?” For district attorneys,
The moral dilemma identified in the Lake Pleasant Bodies case is an attorney’s disturbing conflict with his competing rights to his client and as Badaracco (2009) states “…and his empathy for the victims’ families” (Badaracco, 2009, p. 6). In the case study, Attorney Frank Armani sympathizes with the father of a victim and questions divulging confidential information that would breech the attorney-client agreement with his client Frank Garrow. Additionally, the moral dilemma includes the overwhelming decisions Armani faced constructing a plausible defense for this client and at the same time setting aside his personal reservations regarding his clients guilt.
Smith, C. E. (2004). Public defenders. In T. Hall, U.S. Legal System (pp. 567-572-). [Ebscohost]. Retrieved from http://web.ebscohost.com/ehost/ebookviewer/ebook
...T. M. (1997). Can the jury disregard that information? The use of suspicion to reduce the prejudicial effects of retrial publicity and inadmissible testimony. Personality and Social Psychology Bulletin, 23(11), 1215-1226.
In today’s society with the blogs, the gossip sites and the other forms of social media, confidentiality is a thing of the past. However, for, physicians and other health professionals, they are held to a higher standard to maintain a level of ethics and confidentiality for their patients. Confidentiality is a major duty for a health professional, but is there ever a time to where it is okay to tell what a patient says in confident? What if the patient is a minor, or a senior citizen or someone who is mentally challenged? What if a patient is being abused or wants to commit suicide? Does it matter if it is a nurse, or a dentist, or a psychologist or is all medical professional held to the same moral standard? What roles does a consent form or Health Insurance Portability and Accountability Act plays in the medical world in being confidentiality? I would like to explore Confidentiality and the moral effects it has on the health profession.
However, there are some cases that professionals have to rely on the Law. The Law is different from moral principles and Code of Ethics and its focus is on the legal perspective to protect the professional. The Law is defined by Remley and Herlihy (2010) as “general or specific regarding both what is required and what is allowed of individuals who from a governmental entity” (p.4). One major example is the Tarasoff and the Duty to Protect which is a law that was created after the case that happened with a university student, Tatiana Tarasoff and her boyfriend. Tarasoff’s parents sue the psychotherapists alleging that the professionals should have warned the student. Because of this case, the law raised a major concern that the confidentiality that professionals should follow according to the ACA and AMHCA Code of Ethics has to be broken when there is an issue that can affect a third party in the situation. Like the AMHCA refers to confidentiality as “a right granted to all clients of mental health counseling services. From the onset of the counseling relationship, mental health counselors inform clients of these rights inclu...
What are the ethical concerns regarding this scenario? In one case we are keeping our client’s confidences, building trust and following all ethical codes of confidentiality. In another case, we could possibly cause harm by keeping the client’s spouse in the dark about the affair. The fact that we aid the spouse in harboring this secret can backfire once the spouse finds out that we were well aware of any and all high-risk behavior that will cause emotional distress as well as put him or her in the direct path of potentially deadly sexually transmitted diseases. In my research paper, I will discuss if it is ethical to breech the confidentiality of one client in order to prevent harm to another client.
It is crucial in the legal system to keep our professionalism not only inside of the courtroom, but also outside of the courtroom. You do not bring the courtroom news and spread it all over the county. Keep trials private and only disclose information about it inside of the courtroom. Keep your character valid and honest outside of the courtroom. If your caught doing something your not supposed to do outside of the courtroom, this can hurt your credibility and this can hurt you in the courtroom. You 're only as worthy as your word itself- try keeping your character
The Paralegal Professional, A reference to the source of legal information chapter 12, pages 434, 446, and 454.
Eidness, A. C. (2011). Confronting Ethical Issues in Practice: The Trial Lawyer's Dilemma. Family Law Quarterly, 45(1). Retrieved from http://eds.a.ebscohost.com.library.gcu.edu:2048/eds/detail?vid=10&sid=130cadee-b6c4-4c44-afb0-033cf3dd4548%40sessionmgr4004&hid=4113&bdata=JnNpdGU9ZWRzLWxpdmUmc2NvcGU9c2l0ZQ%3d%3d#db=a9h&AN=63490930
With regard to the attorney-client privilege, I have in my notes that the privilege protects information obtained solely based on the communication. Is this an accurate statement? I know that the privilege does not apply to the facts contained within the communication but the confidential communication itself. I guess I am a little confused and just want to make sure my notes are correct.