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Attorney-client Privilege: The Key Criminal Protection Concept

In the practice of criminal defense, attorney-client privilege, common to all aspects of the law, is extremely vital. In order to properly represent and protect the defendant, a criminal defense counsel must act on factual details transmitted by the client. The privilege is structured to encourage the client to inform his/her lawyer of all relevant facts, even the poor ones, without fear of transmitting this information to others, particularly the government.

Rule 1.6 of the Laws of Professional Ethics of Pennsylvania, “Confidentiality of Information,” directs attorneys to keep a client’s information sent to them private until the client consents to the disclosure. The law has four substantial exceptions. Second, another is trumped by this provision, Rule 3.3 “Candor Toward the Tribunal.” Essentially, this suggests that a counsel and client should not count on the right to proceed to a court significantly misleading evidence or statute.

Second, the right is pierced whether the client warns the solicitor about an attempt to conduct a felony certain to end in suicide, serious bodily injury or substantial financial or property loss (i.e., client tells attorney “I’m going to kill John Smith the day after tomorrow.”) The responsibility of the attorney is to try to persuade the client not to commit the crime in this case, and in future.

Thirdly, in the event that the attorney discovers that his services are being used to commit a felony or a criminal act, the right could be voided.

Fourth, in order to protect him or herself from claims by the client, an attorney is entitled to abuse the right (examples include allegations of ineffectiveness, unethical behavior or fee disputes).

It is still the government’s duty to prove my client guilty beyond a reasonable doubt. There is nothing inappropriate, inaccurate, or immoral about putting the responsibility on the government. Of instance, if the client advises that he or she has committed the crime, he or she will not testify that he or she has not committed the crime. “This would be perjury and obviously run afoul of as well as multiple criminal statutes of “candor against the tribunal.

As a defense counsel, I am allowed to contend that the Commonwealth has not borne the responsibility in the form of going to trial after a defendant has told me that he/she committed a felony, i.e. that there is a fair doubt as to why the crime was committed, while not providing false evidence or making false statements for the real innocence of my client. This is a subtle differentiation, but significant.

In reality, when a client normally walks into my office and tells me that he/she has committed such illegal acts, he/she has already told others about this fact (normally the police). However, in those cases where the client advises me and no one else of their guilt, the ethical standards applicable to lawyers encourage me, indeed guide me, to keep it to myself and give the client my best advice and best defense. As shown by the fact that she decided to marry me, my wife, while not entirely happy with this proposal, saw fit to consider it. I even had the chance to hear her response to the question, “How do I represent people who know they’re guilty?”