Introduction
The main issue that arises, in this case, is whether lawyers must disclose critical information received in confidence from clients to law enforcement departments. It also needs to consider repercussions, both from the perspective of the clients and legal professionals, in the event such classified information is disclosed, or what transpires if it is not revealed during investigations. Thus, critical ethical issues arise whether to release attorney-client privilege information.
Under normal circumstances, a lawyer is prohibited from revealing information relating to the representation of a client, until and unless the client has provided written consent to such revelation. Further, it is believed that “a lawyer may not use information relating to the representation of an existing or former client to the disadvantage of the client unless the client has been fully informed and consents to its use.” (Practice aid guide, the essentials of law office management: Section 2: Conflicts of interests: Consentable conflicts: Using information relating to a Client’s representation, 2004, p.21).
However, what constitutes consent is a matter of jurisprudential conjecture, which may be sustained on certain occasions but overruled on others.
Rule 501of the Federal Rule of Evidence
Rule 501of the Federal Rule of Evidence delineates that privilege “should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship should be determined on a case-by-case basis.” (Jaffee, 1996, II).
The judicial system in the United States has long validated attorney-client privileges. This is to ensure that clients are fully protected by their lawfully protected attorneys. Under such circumstances, “private conversations” carried out between the attorney and his client cannot be disclosed in a court of law without the consent of the client. However, there is one exception to this rule. (Bohlman & Dundas, 2004, p.89).
This is in terms of the fact that communications between the attorney and his/her client concerning future indulgence of crime cannot be accorded privileged status and could be used by attorneys against their clients. Otherwise, the attorneys could also be booked as accessories to crimes. However, this privilege applies to conversations that occur after the wrongdoing and not before it.
Application of this norm
Applying this rule to this case, it could be seen that since the disclosure occurred after the murder was committed; it becomes privileged information and cannot be disclosed by the attorney to anybody without consent from the client. If the attorney, in this case, violates this principle, not only would the attorney–client relations be terminated, but the attorney would also stand susceptible to disciplinary proceedings, including possible disbarment from the profession.
Fivefold test in United States v. United Shoe Machinery Corp. case
In the case of United States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D. Mass. 1950), the aspect of attorney-client privilege was subjected to a Five-Fold Test. In this case, the following determinants emanated that need to bulwark an attorney-client nexus claiming privileged information.
The test lays down the following principles that need to be kept in mind to claim privilege:
- “The person enforcing the privilege must be either an existing or potential client
- The person connected to the communication must be acting as a lawyer
- The interaction must be just between client and attorney and no third parties are involved
- The dialogues sought to claim privilege, must be in the context of seeking legal counsel and not to aid, or abet future crime
- This privilege could only be enforced or rejected by the client and not anybody else.” (Attorney-client privilege, 2009, para.4).
Thus, this power vests with the client, and perhaps with the courts at their discretion. Applying the tests delineated in the United States v. United Shoe Machinery Corp., case, it could be seen that it meets all stated objectives in terms of attorney-client privilege.
On the one hand, we have a situation wherein the client has disclosed past crimes to his attorney, under privilege, and on the other, the ethical need for keeping such professional secrets outside the ambit of legal jurisprudence and court hearing. “In the law of evidence, certain subject matters are privileged, and cannot be inquired into in any way. Such privileged information is not subject to disclosure or discovery and cannot be asked about in testimony. Usually, privileges exist not because of a fear that information provided will be inaccurate, but because there are public policy reasons the information should not be disclosed.” (LII/Legal information institute: Privilege: Overview, n.d, para.1).
Consequences of disclosure of privileged information
A lot would depend upon the circumstances surrounding the case. In this case, it could be inferred that the attorney would exceed his authority if he disclosed client information regarding the previous murder, especially since it is a past matter and the client is not in any way suggesting the lawyer be an accessory or aide in a future plot to murder somebody. Thus, under such circumstances, the courts would need to take cognizance of the fact that private discussions between the lawyer and his client, made between them, are outside the ambit of court jurisdiction, especially when these have been termed as classified and privileged information.
The special status that attorneys enjoy in society enjoins them with duties and responsibilities, not of an ordinary kind. They owe a duty of responsibility not only to the community but also to their clients who have placed trust and allegiance to them in seeking counsel and legal redresses. These powers, however, do not allow the legal professionals to make undue use of or seek advantages that could compromise on their present or future standing with their clients.
Conclusions
Upon application of the rules that emanate concerning disclosure of attorney-client privileges, it could be concluded that a lot of critical aspects would depend upon the surroundings of the case, the perspectives put forth by the defense and prosecution lawyers, and the ultimate view taken by the jury after hearing both sides of the arguments. However, the courts need to consider that certain kinds of information could be deemed as confidential and classified, especially the deliberations and discussions held between the attorneys and their clients, and may not be forced to be disclosed during court proceedings, especially if it could prejudice the position of the clients and place them in a weaker stance than if this piece of disclosure was not made.
The defense lawyers are also duty-bound to ensure that the position of their clients is always protected under law, and they are provided every opportunity to present and seek out a judgment under the due process of current laws in vogue. While the final verdict would vest with the jury, the defense attorneys need to take all efforts to ensure that due carriage of justice is meted out. The constitutional protection afforded to all citizens needs to be abided by.
Reference List
Attorney-client privilege. (2009). The Free Dictionary. Web.
Bohlman, H M., & Dundas, MJ. (2004). The Legal, ethical, and international environment of business, 5th edition. Tsinghua University Press, 89.
Jaffee, C., et. al. (1996). Supreme Court of the United States. Electronic Privacy Information Center. Web.
LII/Legal information institute: Privilege: Overview. (n.d). Cornel University Law School. Web.
Practice aid guide, the essentials of law office management: Section 2: Conflicts of interests: Consentable conflicts: Using information relating to a Client’s representation. (2004). Louisiana State Bar Association, 21. Web.