SCENARIO : Attorney Confidentiality of a Client`s Criminal Plans?
In a Washington case, a defense attorney was told, both by a psychiatrist and an attorney for the client`s mother, that his client`s mental illness made him a threat to others. The attorney did not disclose this information at the bail hearing for his client. Eight days after his release, the client assaulted his mother and attempted suicide.
The appellate court held that the attorney was not legally obligated to disclose this information because the client made no threats in the presence of his attorney that he was going to harm someone. In addition, the mother was aware of the risk she faced.38 In forty states, an attorney is permitted to keep silent even after learning that a client plans to kill someone. In these states, disclosure of a client`s intention to commit a serious crime is entirely at the discretion of the attorney.
How does an attorney`s dual responsibility to his or her client and as an officer of the court rank the interests of the client versus that of society? Is there a moral obligation involved to either the client or society?
The general rule of confidentiality in the attorney-client relationship states that "a lawyer may reveal such confidences or secrets to the extent the lawyer reasonably believes necessary to prevent the client from committing a crime." Most states do not distinguish serious from nonserious crimes, and it is easy for an attorney to justify nondisclosure on grounds that disclosure is "unethical." This conclusion is possible by claiming that the attorney is an advocate for the client, so loyalty lies with the client. It might be argued that it is sometimes difficult to distinguish vague criminal threats from actual criminal plans. This can also be seen as an extension of the legal rule that strangers have no obligation to aid someone in distress.
There are practical reasons for confidentiality, the most important of which is that clients might withhold important facts if they were not certain that their attorneys won`t disclose them to third parties. New Jersey is one of the ten states that require attorneys to disclose a client`s stated intention to commit a homicide or other serious violent crime. A survey there found that about 9 percent of 786 attorneys responding had encountered at least one situation in which they believed their clients were going to commit such serious crimes, but only half of the attorneys disclosed that information to others. Therefore, it appears that even the requirement of disclosure of planned crimes does not guarantee the attorney will do so.
Professional Ethics in Criminal Justice: Being Ethical When No One Is Looking, 3/E, Jay S. Albanese. Published by Allyn & Bacon. Copyright © 2012 by Pearson Education, Inc.
However, when a client discloses to his or her attorney the intention to commit a crime, can the attorney be viewed as an accomplice once the crime is committed?
Do attorneys have a moral obligation, beyond that stated in the law, to protect others from what they believe to be a planned crime.
