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Attorney-client privilege is a rule that preserves the confidentiality of intelligence that is communicated between the lawyers and their clients. The attorney is obliged not to reveal any secrets of the client nor be forced to reveal such secrets. This is a critical provision which allows the client to share important information with their lawyers so as to be able to offer effective representation. Such a privilege has evolved over time and is based on the principle that anyone who seeks advice from the attorney must be able to do so without any fear that such information could be uncovered. The current paper discusses a case of the client disclosing his involvement in the abduction and murder of a 5-year-old boy who has been apparently reported missing by his mother. The key dilemma of this case is that the client disclosed the fact of murder to the attorney. In this situation, it would be vital to adhere to professional ethics instead of the moral standards upheld by the society by respecting the client’s confidentiality and avoiding disbarment.
It is a principle that is vital in ensuring that there is sound advocacy and legal advice to the client. It is upon the client to speak to the attorney and create that important zone of privacy which is so crucial for his/her defense. Rice, Corr, and Drysdale (2009) affirmed that on most occasions, legal counsels have been found at the cross road when it comes to their legal duty to a client, a court as well as their personal ethical and moral beliefs. In the case above, the attorney is torn between the agony of the mother who lost a young child and the client who has confessed his involvement in the kidnapping and murder of the boy. Amidst all these, the attorney has a duty to keep information confidential.
As the attorney is faced with the ethical dilemma, one of the most significant and helpful things to do in this situation is to determine when the attorney-client privilege applies since this will be instrumental in finding a solution. According to Rice et al. (2009), the privilege applies in such cases:
In light of this situation, all the above mentioned points have been fully satisfied. Therefore, it is evident that the attorney owes the duty of confidentiality to the client. The client made a reasonable request that the communication over his involvement in murder of the child remains private. The client is the only one who can offer authority to the counsel to give such information, and this remains the case even after the relationship ends or the client is dead. Gardner and Anderson (2015) indicated that this is the case unless there is an exception as it was determined in case of Swidler & Berlin v. United States (1998). Therefore, it will be wise not to disclose the information at all because of this provision.
In most cases, ethical and moral issues are used interchangeably, but they mean different things. Moral refers to those systems of values, which are attributed to a system of belief that can be philosophical, religious, or even political. Hazard Jr. (1999) explained that ethics refers to how individuals apply the belief in their day-to-day lifestyle. An individual’s morals have to be strict since they will define an individual as well as what they stand for. Once an individual has established his or her morals, it will be shown in the actions which are defined by ethics. At this point, such actions and beliefs can be contrary to the set provisions of the law.
In the situation above, it is important to understand that one could believe in honesty and justice according to the laws of religion they profess. Therefore, it means that one would exercise such morals through the action of informing the mother about what had been said by the client. At this point, ethics will contradict the law.
D'Angelo and Blood (2006) asserted that professional ethics in the case of the attorney calls for the decision, which is morally distasteful to the individual who is making it. A criminal defense attorney is obliged to offer the best legal practice to the client who is evidently reprehensible in moral terms. In this case, a legal counsel may have serious problems if they fail to make a distinction between moral issues and ethical standards. Michmerhuizen (2007) agreed that the disclosure of the client’s private information would be a violation of the ethical standards of legal profession. Once it is known that one is an attorney of the murderer, the public will not consider the fact that one was following the ethical provisions of his or her profession. D'Angelo and Blood (2006) explained that professional standards are highly important to the individual, but it is also vital to consider the fact that the society has certain criteria through which it judges an individual as being morally right or wrong. Thus, the best thing to do in this situation would be to adhere to the ethical standards of the legal profession without necessarily considering the moral principles upheld by the society. It means that this information is not disclosed to anybody including the court. The attorney’s priority is to ensure that the client is adequately advised and defended.
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Since the client, not the attorney, holds the privilege, he/she decides whether to assert or waive it. The right to waive privilege remains with the client, be it an individual, a group of people, or even a corporation. Rice et al. (2009) confirmed that this right passes to any member of the group even when the initial members are not within the organization or in the previous set up. An issue of waiver commonly appears when the communication is witnessed by a third party. Michmerhuizen (2007) affirmed that the existence of a third party during any form of communication will likely be considered as a violation of attorney’s and client’s rights.
As an attorney, one has a duty of confidentiality to the client that prevents them from giving testimony against them. Therefore, the attorney forbids to even discussing such issues with the mother of the dead child informally. Hazard (1999) pointed out that this privilege does not apply to any case; it cannot be used when the client speaks to the lawyer in public and the communication is overheard by a third party. However, if the client communicates with another lawyer apart from his own one, this rule cannot be applied. No matter who overheard the conversation, the lawyer has a right not to reveal the content of it. The presence of a third party absolutely compromises the privilege.
According to Gardner and Anderson (2015), the law In re Auclair, 961 F.2d 65 (1992) states that the lawyer is not allowed to disclose what is said by a prospective client even if he/she does not represent the accused in court. Generally, it is anticipated that the law will only protect the attorney when it comes to information concerning past acts. Considering the fact that the client stated a past action that he already committed, the law will be applied. Rosenzweig (2002) explained that the law would not be applied if the client confided over their aim of committing a future crime. However, there are certain states which require the attorney to disclose information which would prevent death or any serious injury.
It is important for the general public to note that the law in regard to the attorney-client privilege differs from one state to another as well as between the state and federal court. It is crucial for an individual to discuss the scope of a case with the attorney before they divulge some information to the court. It is upon the lawyer to talk to the client over the areas that are covered under the lawyer’s ethical standards as well as the pertinent areas that a client needs to realize.
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In the case above, it is clearly shown what a professional legal counsel has to do when confronted with such a situation. Going against the legal provisions will result in legal ramifications for the individual. It is not good for the attorney’s professional career. Strict morals are important in the public arena, but when it comes to the law any legal counsel who breaches professional ethics will face the justice. In such a situation, the law supersedes morals and one has to act in accordance with the law and forget about the notion held by the society by not disclosing the client’s confession about abducting and killing the boy.