Read about the attorney-client defense privilege as described in this module's Learning Resources. From an ethical standpoint, in length, explain whether or not you agree with the rule/privilege. Support your stance with scholarly research.

Confidentiality Keeping the affairs of the client confidential is a fundamental ethical duty imposed on lawyers. Confidentiality represents a respect for privacy, and in practical terms, clients will be reluctant to consult lawyers who are known to gossip about their affairs. Further, breaching the duty of confidentiality would run afoul of other principles, such as acting in the client's best interests and not personally profiting from information given by the client. It is important to note that this confidentiality belongs to the client and not to the lawyer, and thus only the client can waive it. Where the client is accused of a crime, confidentiality is particularly important because without confidentiality the client is likely to be less than frank, which will affect the lawyer's ability to represent a client and give a zealous defense. The concept of confidentiality between lawyer and client has been doubted by some who argue that ethical rules relating to the practice of law should not protect the guilty client over an innocent third party (Simon 1988; Wasserstrom 1975). For example, as long ago as 1827, Jeremy Bentham strongly attacked the notion of confidentiality that protected a lawyer from testifying when a client had admitted guilt (in Kipnis 1986: 75). Similarly, Goldman (in Kipnis 1986: 75) argues that there ought to be limits to confidentiality and disclaimers warning clients of those limits. However, as Kenneth Kipnis (1986: 75) points out, the arguments favoring limiting confidentiality necessarily lead to the conclusion that clients will not disclose information for fear of it being revealed, and this might prevent a zealous defense. The general duty of confidentiality to the client should not be confused with lawyer-

client privilege. The latter is a principle of evidence relating to revealing information during trial, and it provides that client confidences that are revealed by an attorney may not be used as evidence (Luban 1988: 187). The duty of confidentiality is broader because it requires the lawyer to keep the client's confidences generally, whereas the privilege relates only to confidences being used as evidence. Client Perjury What should a lawyer do when a client commits perjury or makes it clear that he or she intends to commit perjury? Monroe Freedman (1966) argues that the first duty of the lawyer is to try to persuade the client not to commit perjury, but if the lawyer cannot persuade the client, the lawyer should present the testimony as if it were true. He contends that imposing a duty on the lawyer to divulge perjury would involve the lawyer in a situation of inconsistent obligations. Thus, the lawyer must find out all the facts of the case to offer the best defense and must keep the client's confidences but must also divulge that the client's testimony is false, a fact that has been learned through the client's confidences. It is clear that if any two of these are to be honored, the third cannot be honored. Attempting to withdraw from the case is not a solution because doing so would merely provide defendants with an excuse for a delay or a mistrial, and in any event, the next lawyer would be faced with the same situation as the withdrawing lawyer. Until the mid-1980s, the law on this ethical issue was unclear, but courts generally held that in a civil case, a lawyer who is aware that a client has committed perjury must disclose it to the court if the client refuses to do so. However, in criminal cases, there is an added constitutional dimension that produces more complexity, the argument being that informing on one's own client is such a grave violation of the confidentiality rule as to be unconstitutional. Model Rule 3.3 now requires that lawyers "take reasonable remedial measures" when they come to know that evidence is false, and this duty applies even if it involves the disclosure of confidential information (Luban 1988: 198- 199). Client Crime Lawyer-client confidentiality is completely negated if the client consults the lawyer in furtherance of a crime or fraud. This applies even if the lawyer was unaware of the true nature of the client's purpose. Where this exception applies, information that would otherwise have been privileged must be disclosed when a proper demand is made (Hazard and Hodes 2002: 9-34). In addition, Model Rule 1.6 (b)(1) allows a lawyer, in

certain narrowly defined circumstances, to disclose confidential client information to prevent future harm. For example, disclosure is permitted to the extent necessary to prevent a client from committing a criminal act that the lawyer reasonably believes is likely to result in imminent death or substantial bodily harm. It is important to note that this exception applies to crimes that have yet to be committed, and it should be contrasted with completed past crimes for which disclosing client information is not permitted. A good example of the completed crimes rule is the "Buried Bodies" case discussed in Case Study 5.1. If, in Case Study 5.1, the lawyers had taken physical possession of the bodies or had in some other way impeded the police discovery of that evidence, the confidentiality situation would be different because despite the existence of lawyer-client confidentiality, courts commonly require lawyers to make voluntary disclosure of the benefits and means of their client's crimes. Court decisions concerning this duty begin with the principle that a lawyer may not actively participate in hiding an item or take possession of it in such a way as to impede its discovery by the authorities (Hazard and Hodes 2002: 9-103). For example, in one case, a lawyer removed a sawed-off shotgun and the proceeds of a robbery from a client's safety deposit box and put them in his own box in the same bank. The court held the lawyer's conduct to be improper. The court cases also indicate that lawyers must comply with statutes that prohibit destroying, altering, or concealing evidence or that require lawyers to voluntarily turn over physical evidence that has come into their possession. For example, the Alaska Supreme Court has ruled that a lawyer had a duty to turn over a client's written kidnap plan to prosecutors, even without having been asked for it, and in a California case, after the defendant was arrested on charges of strangling his girlfriend, his family found incriminating writings in his room, which they gave to the defendant's lawyer, who passed them to the judge, who in turn gave them to the prosecutor (Morrell v. State 1978). The court held that the defendant's lawyer was fulfilling his legal obligation when delivering the documents to the judge (Hansen 2005: 3). Case Study 5.1 Buried Bodies Case Lawyers represented a defendant charged with murder, and during the period before trial, the defendant told his lawyers about two other murders he had committed and described where the bodies were buried. The lawyers located the bodies, which were those of two young women who had been missing for some time. It happened that the authorities came to suspect the defendant of murdering the missing women, and the father of one of the victims asked one of the lawyers if he knew anything about her fate. The lawyers did not disclose the location of the bodies to the authorities or the father but attempted to use their knowledge to the advantage of their client in plea bargaining. It was only when those negotiations failed and the case went to trial that the location of the bodies was revealed, together with the lawyers' knowledge of that fact. The lawyers had information about a completed crime given to them in confidence by a defendant in a criminal case and acted properly within the

bounds of the ABA Code of Ethics in withholding that information. In moral terms, it can be argued that even without a rule of nondisclosure, nondisclosure would not have been morally required because the victims were already dead and could not be helped. Of course, the victim's father suffered, and withholding the truth increased his period of uncertainty, but if such suffering were to outweigh confidentiality, a client's disclosure of a past crime would never be protected. If, in this case, the lawyers had discovered the two victims wounded but still alive, then they would have been faced with a scenario falling under the rule concerned with preventing future harm. Morally, however, it is hard to imagine any lawyer leaving the victims to die, and in practice, rules of ethics would play little part in such a scenario. SOURCE: Hazard and Hodes 2002: 9-79. Defense Lawyers The two main systems under which lawyers represent clients in the West are adversarial and inquisitorial. In adversarial systems of law, the parties and their lawyers play the principal role of gathering evidence and examining witnesses in court, and the court plays a less active role. In the inquisitorial system, the court plays the main role in gathering evidence and questioning witnesses. It is sometimes argued that the judge in the inquisitorial system is more concerned with discovering "the truth," whereas in the adversarial system, lawyers dominate, and judges, acting as referees, are mainly concerned about due process and procedures being followed and not so much the search for the truth. Marvin Frankel (1975) contends that the legal profession in the United States is held in low regard because establishing truth has a low priority as an overall objective of the process. This raises the issue of the adversarial system privileging procedural fairness over truth, and Frankel suggests that too much emphasis is placed on