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Unpublished Paper
Comparing Exceptions to Privilege and Confidentiality Relating to Crime, Fraud, and Harm -- Can Hard Cases Make Good Law?
ExpressO (2010)
  • Jean Fleming Powers, South Texas College of Law
Abstract

The article begins by describing some scenarios – the hard cases – that illustrate the tension between the lawyer’s obligation to his client and what many would view as basic standards of decency and humanity. The cases include (1) the recent case of an innocent man who spent 26 years in jail for a crime he did not commit while the attorneys for the real perpetrator protected the information that their own client had committed the crime, (2) cases involving the extent of the exception to confidentiality to prevent death or substantial bodily harm, (3) a case in which attorneys protected client information that would have revealed the location of murder victims whose families did not have final confirmation of their death, (4) a case in which information properly revealed under a confidentiality exception nonetheless retained its protection under attorney-client privilege, (5) a case dealing with the admissibility of the “fruits” of such information, and (6) a case dealing with the protection of information after the death of the client.

The article then briefly discusses why the rules concerning evidentiary privilege and those related to the ethical duty of confidentiality are confused, and compares the purpose and structure of each set of rules. The article then compares the purpose and structure of the crime-fraud exception to privilege and the “death or substantial bodily harm” exception (and related exceptions) to confidentiality.

Using the “hard cases” to illustrate, it suggests making some changes to confidentiality rules, and in other cases leaving the rules as they are. The removal of the client crime requirement to the confidentiality exception to prevent death or substantial bodily harm is appropriate and should be more widely adopted. Further, a new exception should be added allowing revelation to prevent a substantial loss of liberty. However, because of the importance of protecting confidential information, the exceptions should limited and should be permissive, not mandatory. Thus, the information about the location of the bodies discussed above would continue to be protected.

Some problems could be solved by refining privilege rules or by carefully maintaining the distinctions between evidentiary privilege and the ethical rules concerning confidentiality. Both threats to commit a crime and questions regarding potential criminal activity should be initially protected by attorney-client privilege, and that the crime-fraud exception would not allow revelation unless and until the client commits, or prepares to commit, the crime. Further, a revelation under an exception to confidentiality should not necessarily destroy privilege as to the communication revealed. The fruits of information that is thus protected by privilege should also be protected unless it was, or would have been, discovered independently of the revelation. Finally, the article explains how the suggested changes address many of the concerns raised by the protection of information after the death of a client.

Keywords
  • attorney-client privilege,
  • confidentiality
Disciplines
Publication Date
March 31, 2010
Citation Information
Jean Fleming Powers. "Comparing Exceptions to Privilege and Confidentiality Relating to Crime, Fraud, and Harm -- Can Hard Cases Make Good Law?" ExpressO (2010)
Available at: http://works.bepress.com/jean_powers/1/