Vail Daily column: Attorney-client privilege
February 16, 2016
Recently, the television news program, "60 Minutes," aired an investigative report about lawyers. At least some lawyers.
The hidden camera rouse was this — I know, I know, it sounds like I'm setting up a Henny Youngman joke. A man walks into a lawyer's office. He claims to be sitting on a pile of dough. He is an emissary for a foreign dignitary and is candid in disclosing that the pile of money he is sitting on is the avails of ill-gotten gains. The potentate he claims to be representing has bilked his people out of a considerable fortune, which now, through the offices of the emissary and the help of the attorneys, he wants to "wash" via legal sleight of hand and invest in the United States.
Some of the lawyers' eyes opened wide. They know a goldmine when they see one. These few were quite candid about the miracles they could work on the potentate's behalf and one or two were so bold as to quote what seemed a stunning fee. Others were more cautious and more probing in their questions. While they made no guarantees and made no noises committing themselves to taking the case, their appetites were clearly whetted. Only one of the lawyers gave the emissary the bum's rush. "This ain't for me," he said without equivocation. When the emissary persisted asking who he might be referred to, this particular lawyer looked him in the eye and said that anyone he might refer this dirty matter to would be insulted.
Following the story, a friend of mine asked if I had seen the program and wondered what I thought. I said yes, reminding him that I had been a member of the State Bar Ethics Committee for a decade and a half. In short, I said, I was disgusted.
Lawyers take something akin to a holy vow of confidentiality. If you pop into my office — or the office of any other attorney who holds ethics dear — you can spill your guts with the confidence of knowing that your secrets will be kept. Your goals, desires, secrets, hopes, aspirations, foibles, short-comings, dreams, strategies, grudges and so on will stay securely zipped behind the lawyer's lips as long as you do not share with the lawyer your intent to commit a crime. This, in fact, is sacrosanct before the law. The lawyer is your ally, your zealous advocate. If you cannot be candid with him, then he may be hamstrung in your representation.
While I have always thought that the privilege should be referred to as the client-attorney privilege, as it is the client and not the attorney who holds the privilege, and the client, not the attorney, who can waive it, there are other privileges recognized by law; doctor-client privilege, priest-penitent privilege, patient-therapist privilege, and the privilege between a husband and a wife. The reasoning behind all of them is essentially the same; one can and should expect candor when the relationship itself is based upon — and depends upon — trust. As with the attorney-client privilege, however, all of these professional relationships have limits. The exception is the husband-wife relationship in which the right to not testify against one's spouse — or to disclose confidential discussions — is absolute.
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Consider the tempest stirred up in the Aurora shooter trial in which an apoplectic tug of war ensured over what the shooter's therapist should have disclosed that might have prevented the shooting. While the various privileges are not quite sacred, they are very near holy grails that the law is loath to unsettle, except in the most extreme of circumstances. One must accept that one's vision in hindsight is always clearer. One can also have little doubt that if the therapist had had the slightest inkling that the disturbed young man that she was treating was capable of the slaughter it turned out he had in his sights, she would have spilled the beans to law enforcement in a New York minute. At the time, however, she was justly constrained by her obligation of confidentiality.
Lawyers are guided by and held to a strict code of ethics, the "Rules of Professional Conduct." And among the holiest of holies is Rule 1.6 which provides, in relevant part, "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent…." Contemplating the exception I meant to get at earlier, the rule goes on to hold, "A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: 1. to prevent reasonably certain death or substantial bodily harm; (or) 2. to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another." This is only a partial list of what are seven enumerated exceptions that share the theme of preventing a harm to others by illicit means.
So what does all of this have to do with "60 Minutes"?
It's this: There was nothing wrong with the lawyers listening to the emissary's spiel. There was also nothing wrong with holding what was said to them in confidence. Only if they'd reasonably believed that physical or financial harm would be occasioned to others by illicit means could they divulge what they had heard.
Neither hearing the fellow out nor holding what he said in confidence was wrong.
Where some of them may have crossed the line, however, is in agreeing to carry out the plan. That is where the evil lurked and what turned my stomach.
Believe it or not, most lawyers I know take their ethics very, very seriously and look with disdain upon those who don't. Hurrah to the lawyer who showed the bum the door!
What did my client say to me?
Shhhh! My lips are sealed.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at either of his email addresses, email@example.com or firstname.lastname@example.org.
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