What Would YOU Do?
In California, an attorney may (but is not required to) reveal confidential information if he or she reasonably believes disclosure would prevent death or substantial bodily harm.
Over lunch the other day, my colleagues and I pondered the following hypothetical:
A client charged with kidnapping reveals he has left his victim---a small child---tied up at the bottom of a well. If this information is kept confidential, the child will perish, and your client will likely escape conviction due to the lack eyewitness identification. If the information is divulged, the child's life will be saved, and the client will likely be convicted, based on the child's identification of the client.
What would you do?
(By the way, five out of six here said save the child.)
posted by brainmarket @ 3:18 PM
20 Comments:
Under the current rule, since I may under those circumsatnces, I probably would let the authorities know. I believe the old rule was that the attorney could not divulge anything. Under that rule, I probably would not.
I would divorce your ass if you didn't save the child.
Lulu: Any of us who own a big screen tv could have prevented the deaths of HUNDREDS of children by simply getting a smaller tv and sending the difference to OXFAM. The issue here is: How committed are defense attorneys to maintaining the integrity of the system?
Brain Market: What if: for every starving child you save by donating money, five more are created? Those children go forth and have more children, thanks to your dollars...IF one DID not divulge information that WOULD HAVE saved the child's life, that is an active role in the child's death. THAT is punishable under the law. Civic duty vs. civic duty? Your civic duty as a citizen is pitted against your civic duty as an officer of the court. I see the conundrum, however, do not see the difficulty in the choice you ultimately make for the greater good of you as a member of society. I'd suggest, in essence, that one would have to recuse him/herself from defense after making the MORAL decision.
People are not often entirely honest with their defense attorneys. We both know that. Your argument is flawed about the integrity of the confidentiality between attorneys and clients in that a criminal defense attorney's job is not to uncover "the truth" per se but to present their client with the best defense possible. You needn't know the truth in order to do that. Ergo, confidential integrity cannot be compromised.
In my opinion, rule 3-100 erodes confidence in the criminal defense bar. Because potential clients can no longer expect absolute confidentiality, the defense attorney's role is devalued and harder to perform. That scenario, however, assumes that clients are on notice. Should the rule require that all attorneys advise their clients at the earliest opportunity of this exception to the confidentiality of the relationship?
What trust do appointed defense attorney's have anyway? Many of our clients think we 'work' for the 'other' side, of course, that sentiment is strong when the appointed attorney is a PD.
Also, there are plenty of crimes people can contemplate and tell their attorneys about and about which the attorney still can't say anything. It is only those the would lead to death or substantial bodily harm that MAY be disclosed.
Yikes, learner. Were you THIS cynical BEFORE you got within range of the brainmarket's contagion?
Wow. just caught this post. I just have one question: How is contributing to your client's conviction the "right" thing to do? Obviously, standing silent in the face of an innocent death is the wrong thing to do. So is ratting out your client.
There is no right thing to do.
I cannot even fathom the thought of ratting out a client. I would turn in my meal ticket if that day ever came.
I agree Nebur, this would call for early retirement. There would be no other way.
I can't imagine this problem coming up in real life.
That said, it seems to me that as an attorney, I would be obligated to warn my client about the disclosure rule before the client revealed the information.
Lulu, it's not so much that I would be worried about the effect of reporting on the defense bar. Or even the adverse effect on poor old Johnny Child-in-well-hider. My concern is that clients, who (as Learner points out) already tend to B.S. their attorneys, will hold back even more. Such an erosion of trust could harm the way the system works for EVERYONE, you included.
Brain,
Get off your arse and start writing again. Your public misses you. Oh, and you have all those pretty business cards out there with the website on them.
Oooooohhh, 15 comments! Whoopty-bloody-doo! Give us what we want!
Nebur (and anyone else who cares):
the reason for no post for a week or so is not so much laziness as the fact that nothing worthy of posting has passed through my sphere lately. Maybe later this week. Who knows? One thing I like very much about my job is never knowing what on earth is going to happen on any given day.
Actually, now that you got me thinking, Nebur, there was this one thing that happened today concerning a "Jane Doe" client. . . but no time to write tonight, so will try to write about it tomorrow.
You could post about what a raving cunt I've been to live with as of late. I blame hormones. GOD DAMN THEM AAAAAAAAAAAAAAAAAAHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH!!!!!!!!!!!!!!!!!!!!!!!
Love you daddy.
anon said he/she couldn't see this situation coming up in real life. McClure V. Thompson, 323 F3d 1233 (9th Cir 2003) is pretty close; the difference between McClure and the hypothetical is that in McClure, the attorney didn't know for sure whether the kids were alive. In that case, the attorney made an anonymous call and told the police where the bodies were. The 9th found no conflict and no breach of confidentiality.
http://www.law.umkc.edu/faculty/profiles/
glesnerfines/PRSUPP/McClure.htm
Jack
I admit that I should have hedged the language in my post to something like this: properly advised about whether his lawyer may rat him out, a sane client is not likely to give up this kind of information. (the info from the hypo about the kid in the well) Now, onto the real case:
IAOC claims are subject to such a low standard.
Sounds to me like the client in that case might have been a tad bit crazy. That said, I think his lawyer sold him out. Then, when facing an IAOC claim, the lawyer covered his own ass with fairly unconvincing and internally inconsistent BS about whether the client gave him permission to dislose the location, whether the client wanted him to disclose the location, whether the client suggested that the kids were still alive, etc.
Directly from the opinion:
Mecca recorded in his notes, "I had made up my mind then that I had to do the correct thing. The only option I had, as far as I was concerned, was to disclose the whereabouts of the body [sic]." (Recall that by the time Mecca wrote these notes, he had learned that the children were dead.) A law enforcement official testified in a federal court deposition that, after both the state bar association and the attorney general "recommended that it would be unwise for Mr. Mecca to provide us information," Mecca "indicated that, even though there might be sanctions, that he still was wanting to provide information that he had regarding the children." Mecca stated that when he spoke with McClure's sister and mother, they were adamant that he do whatever he could to locate the children, and that "they were still under the impression that one or both of the children were alive, or at least there was a chance they were alive."
The client did not tell his attorney that the children might still be alive. The client's sister and mother were the ones that planted that idea in the attorney's mind. (And then there's a crazy-sounding "Jesus saved the kids" quote.)
This attorney thought his only option was to go interrogate his client about whether the children were alive, and then to disclose the location of their dead bodies, which would save zero children, yet would harm his client. Good going, guy.
Ummm, a kid making the right id of your client? Not a snowball's chance in hell. Plus, if you can't destroy a kids reality of what is real and not real on hte stand you should be found ineffective.
Tell your priest or another lawyer where the kid is with instructions to inform on where the kid this way you are protected and hence the identity of your client is likewise protected.
Any lawyer who cannot prevent a conviction based on a child's identification is ineffective? Really, "anonymous"?
The 6th lawyer should be disbarred.
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