Eugene Volokh started a heated discussion a couple of days ago by calling attention to a legal dilemma that sounds like it was contrived for a final in a legal ethics course. To summarize the essential facts: A client tells his attorney that he committed a murder. Another man is arrested for the crime, tried, convicted and sentenced to life in prison. The attorney believes his client’s confession. What obligation, if any, does he have to disclose it to the authorities?
Two lawyers faced this question in real life and reached the correct exam answer: Unless the client voluntarily waives attorney-client privilege, it is a breach of legal ethics to inform anyone of his admission. But should that be the answer? In this case, an innocent man (innocent of this murder, at any rate) spent 26 years in prison, until the death of the client released the lawyers from their enforced silence. Many commenters on Professor Volokh’s blog think that’s so atrocious an outcome that it raises severe doubts about the ethical principle.
The argument against silence is that, whatever the benefits of attorney-client privilege, a lawyer has a higher duty to prevent the infliction of what he knows to be an unjust punishment. Several commenters declared that the lawyers in this case should have risked disbarment, that is, the loss of their professional livelihood, in order to see that justice was done. (Professor Volokh disagrees on that point.)
It isn’t unusual for more than one moral or ethical principle to be pertinent to a particular situation. (In fact, it’s very unusual for there to be only one.) To think clearly about the competing principles here, we need to start with why the attorney-client privilege exists.
Its justification is not primarily that it makes it easier for clients to be candid with their legal representatives. There are hundreds of other contexts in which candor is desirable but not underwritten by law. The only clear and unequivocal communications privileges that our legal system has traditionally recognized are attorney-client, husband-wife and priest-penitent. The last two rest on reluctance to intrude on marriage and religion. The rationale for the first is rooted in the Constitutional protection against self-incrimination.
An individual cannot be compelled to testify to his own guilt in a criminal matter. He obviously would not lose that immunity if he acted as his own counsel. The attorney-client privilege does no more than preserve it when he employs someone else to represent him. The attorney is simply an extension of the client. The law makes what one tells the other as secret as an unspoken monologue.
As a thought experiment, suppose that lawyers could be replaced by computer programs. Would even the most hard-nosed law’n’order advocate suggest that prosecutors be allowed to browse defendants’ data entries? Why, then, take away confidentiality when the data are conveyed to a man rather than a machine?
On the other side of this dilemma we have the “duty to rescue”. Anglo-American law gives it short shrift; it would not be part of the exam answer. But we are free, considering the question from a moral point of view, to accord it greater weight.
To many of Professor Volokh’s commenters, sparing an innocent man a quarter century of imprisonment was an easy choice. But what about the lawyers’ duty to their client? If we strip away that duty in this instance, doesn’t that imply that protection against self-incrimination should yield to the right of the innocent not to be falsely convicted? If so, what is the justification for the Fifth Amendment? Limitations on self-incrimination unquestionably lead to miscarriages of justice. In the case at hand, the murderer might not have said anything to his attorneys. (He almost certainly wouldn’t have if attorney-client privilege did not exist.) Suppose that the police had pried out a confession through methods not sanctioned by Miranda, but well short of physical coercion. Wouldn’t that also be better than those undeserved years in prison?
Many principles strongly embedded in our legal tradition can lead to unhappy, even tragic consequences. Miscarriages of justice arise abundantly from the Fourth through Seventh Amendments. That is a reason not to turn principles into unyielding dogmas. At the same time, we must face the sad reality that, in the absence of angelic government, hard cases will frustrate all efforts to apply easy laws.
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