WHEN MUST A LAWYER DISCLOSE PRIVILEGED INFORMATION
Andrew Shein, Esq.
07/30/06

WHEN MUST A LAWYER DISCLOSE PRIVILEGED INFORMATION

One day, your client comes to your office seeking your advice regarding a criminal matter. He begins by saying, “You know those stories on television about the missing young girl? I did it. I took her about four days ago from her house.” He continues relaying more details about the abduction and his subsequent assault of the girl. Your client also volunteers that he buried the child in the woods near his home. He tells you in detail where he buried the girl and concludes with perhaps the most unsettling information. He states, “I checked on her yesterday and she might still be barely alive.” There are a myriad of responses that an attorney would have for this client. But, the purpose of this article is to explore what you, as this client’s attorney, are ethically bound to do in response to your client’s appalling admissions.

Many attorneys have a visceral reaction, that being to immediately contact law enforcement with the information – even at the expense of their client’s rights. Clearly, disclosing such information would identify your client and make him subject to the criminal justice system and maybe even the death penalty. Other attorneys initially believe that this information, although horrific, is a privileged attorney-client communication and thus cannot be disclosed to anyone.

Other attorney’s may feel the best course of action is to anonymously convey enough pertinent information to law enforcement without revealing your own identity or that of your client. Or, some attorneys are so morally or ethically outraged that they are willing to try to save the victim themselves - which raises a host of other issues (i.e. evidence tampering). For some guidance, the Rules Regulating the Florida Bar, Rule 4-1.6(b) - CONFIDENTIALITY OF INFORMATION - When a Lawyer Must Reveal Information states, A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent a client from committing a crime; or (2) to prevent a death or substantial bodily harm to another.

At first blush, it would appear that the attorney MUST reveal the information from his client because the attorney must prevent his client from committing a crime. However, does it matter if the crime is already over and no future crimes are about to occur?

Subsection (2) requires an attorney to reveal the confidential information to prevent death or substantial bodily harm to another. In this case, it would appear that the attorney must disclose the information in order to save the victim. But what if the attorney believed or knew the victim were already dead?

As lawyers, and especially criminal defense lawyers, we have certainly learned that there are exceptions to almost every rule of law. Hopefully, this article will remind each of us to take the necessary time to re-familiarize ourselves with all the rules of professional responsibility so that we can all be better attorneys, better advocates for our clients, and true officers of the court.

> The Law Offices of Andrew Shein, P.A > 1915 West Cass Street > Tampa, FL 33606 > (813) 258-1444 > (813) 258-1441 - fax > ANDREW SHEIN, ESQ.