Revealing a client confidence to a reporter does not violate the technical evidentiary rule, because it’s not a court proceeding. It does violate the state bar rule against revealing client confidences. But violating that rule gets you sued, disbarred, and possibly even prosecuted (iirc) and it still doesn’t get the innocent guy out of jail.

To get the innocent guy out of jail, the attorney has to reveal the confession and supporting info to a judge, but the judge CANNOT, AS A MATTER OF LAW, HEAR THAT TESTIMONY, unless the confessor allows it.

Until someone explains how the defense counsel can actually help the innocent guy, I remain completely unpersuaded by the idea that THIS group of secrets-holders have some special duty of self-sacrifice. They can’t and they don’t.

Confidentiality has a similar intent but it is an ehtical rule that the lawyer must follow. It means a lawyer can not reveal things said by a client in confidence whether it’s in a meeting, negotiations or even a completely informal setting - not just at trial or some other evidentiary hearing.

So, at this stage, the lawyers are bound by the ethical rule of confidentiality, and not privelege.

can you explain how that is the ethical thing? Perhaps it is the moral things, but the ethics of revealing your client’s confidences are pretty significant when viewed in the context of the overall system. Which is what ethics means: how do we want certainly people to act within *a system* so as to make sure the system works as best as possible, even if it may not be the best thing in every scenario, and even if it may force people to be extra careful or cause bad results in the instan case.

And Mike Schneider, what is a lawyer’s highest duty then if it’s not that? Oh and if you say “to see justice done” I reserve the right to electrnically laugh in your face and ask you to move to Europe where they usually don’t have an *adversarial system.*

No it isn’t. You’ve just *sold* yourself on the idea.

Francis> …so that the justice system can work…

Yes; that’s the important thing: All the ground up bodies in the world don’t matter so long as the “justice system can work”, they say, while the system (corrupt government monopoly on justice) demonstrably does not work — as this site details daily.

See, if a privilege doesn’t exist for a certain member of society, that means they can be subpoenaed. And if you are subpoenaed, there are very real consequences to refusing that subpoena, including prison, because society has determined that it’s more important that there is a fair trial in which all relevant testimony has heard. If you answer and refuse to testify, you can be charged with contempt, and ask Judith Miller how that turned out.

However, in the case of privilege, society has determined that there are certain people whom for it is more important that they not testify. In other words, society feels that a fair trial for the defendant in which all information comes out is less important than what would happen if this person could be forced to testify.

For instance, in some states, there is a husband/wife privilege, because that state determined that the value of harmony between a husband and a wife and the vows of marriage are more important than testifying. Some areas disagree with this, and have removed this privilege.

Attorney client privilege however, protects the 5th amendment itself.

Hypothetical: Let’s say there was no privilege, and the defense knew the defendant was not committing the crime he was charged with on the night in question, but instead, out robbing a bank somewhere. Prosecution decides the defense knows something about the case, the local hangin’ judge agrees and sends out a subpoena. Now, the defense can choose not to testify, and go to jail, and lose his license. Or, he can testify. He testifies that he knows the defendant has told him was not at the scene of the crime. Prosecutor asks, well, where was he then? Since the lawyer now has to answer that question, he says, out robbing a bank. Police say, ‘O RLY?’, and immediately, using this new info, start investigating that robbery. Defendant has been essentially forced into incriminating himself.

Result? No defendant would willingly ever tell his defense lawyer a thing. A defense lawyer would go into every trial blind as a bat, using only the information the police have provided him. He could not mount a competent defense, and no defendant in this country would ever have a fair trial. A fair trial is one of the very bases of our republic. You take that away, and we have nothing in this country. You have a police state.

And yes, bad results happen some time. It is terrible that an innocent man was in prison for so long. But attorney client privilege isn’t the problem here. The system as it stands is.

Oh, and I’m not a criminal defense lawyer. I do administrative work regarding Social Security and Medicaid. I don’t deal much with this privilege, but I understand it’s importance.

I’m sorry this is so long, but this is a complicated issue that many people don’t understand the relevance of, instead presenting the straw man that it “just protects the defendant”. It’s not about that at all. If you consider yourself a libertarian, this privilege is just as important, as anything in the Bill of Rights. In my opinion, it outranks some of them.

priest
defense counsel
intelligence officer / code breaker
engineer on “black” projects

Can’t keep the secrets that come with that job? Don’t take it.

But the jobs need doing. And putting a bullet in the head of a spy who let some innocent people die so that an operation could go forward doesn’t make any more sense than killing defense counsel who kept their own secrets so that the justice system can work.

(now, punishing [murdering?] priests who failed to disclose the confessions of fellow priests who were committing pedophelia …. there’s a thread worth having.)

What about the cops and prosecutors who withheld evidence (ie - the shotgun found at Andrew Wilson’s)?

In the hierarchy of scum, the 2 lawyers aren’t at the top.

Don’t become a lawyer.

What would you do?

Go to the press.

The well-being of my clients is my very highest duty as a lawyer, beyond my duty to see that no new harm be done to anyone. Don’t ask yourself what you would want a lawyer to do in this situation, ask yourself what you would want YOUR lawyer to do in this situation.

(Proud to be in double-digit negatives alongside trench-mate Billy Beck while the Pragmatist Vichy French are off high-fiving the Krauts.)

Salvo> “…If a lawyer could be forced to talk…”

Hey: That red-herring is NOT what this outrage is about. Stay on target.

The lawyer client privilege doesn’t exist to protect the rights of the defendant(well, mostly); it exists to protect the system of a fair trial itself. The lawyer client privilege is the logical extension of the 5th amendment. What you’re talking about here is abolishing that privilege, and if that privilege is abolished, what do you have?

What we have right now with journalists and sources. Cops find out that a defense lawyer knows something about a crime(maybe). Lawyer refuses to talk. Judge, because there is no lawyer client privilege, orders the defense lawyer to talk about what he knows about the case. Lawyer refuses. Lawyer gets thrown in jail for contempt of court until he talks. Privilege is not about protecting individuals. It’s about the state making a value judgment that certain members of society shouldn’t be *forced* to testify. It’s not about preventing people from coming forward. It’s about preventing the state from dragging people into court and holding a metaphorical gun to their head in order to elicit testimony.

It’s not right when it happens to journalists, and it’d be infinitely more wrong if it happened to defense attorneys. If a lawyer could be forced to talk(and that, my friends, is exactly what privilege protects against), who the hell would ever become a defense lawyer, if it could expose you to that type of liability? And now, that we’ve eliminated defense lawyers, what happened to due process and a fair trial? Yeah, exactly. You’ve thrown it out the window. Don’t like Godwinning a thread, but….well, police states and all.

So, to everybody talking about how they couldn’t represent a guilty client….you need to realize that this isn’t about protecting a single person. It’s about serving and protecting the Constitution, something every lawyer swears to do when we are admitted to the bar.

Yes, sometimes, individuals get hurt. That sucks. But, as others above have stated, start looking at the system that allows that sort of thing to happen, not at the defense lawyers who are bound by their oaths of office to provide the best defense they can.

The only way those defense lawyers knew that their client committed the crime is _because_ of the attorney-client privilege. The privilege is intended to allow for complete candor in the attorney-client relationship. (Like the penitent-priest privilege.) Do you think the guy would have confessed to them at all if he thought they could/would disclose that information?? Of course not. And another innocent person would still be in jail today and probably for the rest of his life.

A. Clients lie all the time. The confession could easily be false.
B. The one chance defense counsel has to win the case is to get his client to trust him. Blabbing off your mouth to the judge (who will refuse to listen) or the prosecutor (who won’t care) only damages your ability to represent your existing client.
C. Why the knock on defense counsel? Where’s the outrage about the priest-penitent privilege?
D. Even if you try to help, you can’t. Absolutely no one will care about some loony defense counsel running around the courthouse saying that he’s absolutely sure some guy, WHO’S NOT EVEN HIS CLIENT, is factually innocent. The only way (this is worth repeating — THE ONLY WAY) defense counsel could try to get the innocent guy off is to implicate his own client under oath. But you can’t get from here to there. First, counsel has to withdraw from representing his own client. Next, the counsel has to get defense counsel in the new case to call him as a witness. Now, because the second lawyer likes his bar license too, he (and the judge) are going to insist that the guy who confessed come to court and waive the privilege.

Now, imagine what happens next. You’ve killed a guy and confessed to your lawyer that you did it. Your lawyer has withdrawn from representing you and won’t tell you why. The next thing that happens is that you’re called into a courtroom, and you see (a) the judge; (b) defense counsel for the guy falsely accused, (c) your ex-lawyer, (d) your new lawyer and (e) no one else — no prosecutor, no jury. The judge puts you on the stand and asks you if you are willing to waive the attorney-client privilege so your ex-lawyer can testify against you. Your new lawyer is telling you to shut your mouth and simultaneously calling the State Bar so your ex-lawyer gets disbarred.

Do you (a) have a sudden attack of remorse and let your ex-lawyer testify about your confession [which will need enough corroborating evidence to convict you, or the prosecutor will just call it a fake confession designed to confuse the jury] or (b) shut your mouth?

There’s lots of evidence kept out of trials that might be probitive — hearsay, tortured confessions, illegally obtained evidence, privileged communications. We keep the evidence out because keeping the system working at all requires the exclusion.

Blame the prosecutor for putting an innocent man in jail.