RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – Threats, Sensitive Information, and the Rule of Confidentiality at Trial

RHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

ETHICAL DILEMMAS AT TRIAL

Threats, Sensitive Information, and the Rule of Confidentiality at Trial

R.I. RULES OF PROF’L CONDUCT R. 1.6: Confidentiality of Information

(b) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

(c) A lawyer may, but is not obligated to, reveal such information to the extent the lawyer reasonably believes necessary:

• • 1. to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or
    2. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

People v. Belge, 372 N.Y.S.2d 798 (N.Y. App. Div. 1975).  In light of attorney/client relationship, failure of attorney to disclose, prior to trial, his discovery of body of one of murder victims made by virtue of client’s disclosure to counsel, did not provide proper basis for charging attorney with criminal offenses related to disposal of bodies.  Therefore, indictment against attorney should be dismissed.

Sanford v. State, 21 S.W.3d 337 (Tex. App. 2000). Trial court improperly allowed the State to disclose to the jury that it was defendant’s attorney who told the State the location of an instrumentality of the crime (i.e. an automobile).  Because this disclosure violated defendant’s attorney client privilege, his convictions for the aggravated offenses of kidnapping and assault with a deadly weapon were reversed and the case remanded.  But cf. Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (holding that substantial evidence of guilt must be considered in a harm analysis for non-constitutional errors committed at trial).

Newman v. State, 863 A.2d 321 (Md. 2004).  Defendant was convicted of conspiracy, attempted murder, assault, and burglary after the trial court compelled her divorce attorney to testify regarding a Rule 1.6 disclosure he made after defendant communicated her plan to kill one of her children and frame her husband.  Before making the Rule 1.6 disclosure, the attorney repeatedly asked his client to convince him that her plan was not real (and merely the result of frustration, anger, and fear), and warned her that he would inform the judge if she did not convince him.  The court noted that the Rule 1.6 discretionary disclosure was reasonable, but more importantly held that it did not obviate defendant’s attorney-client privilege.  Consequently, counsel’s testimony was inadmissible, defendant’s conviction was reversed, and the case was remanded.

• Solution:  A lawyer is permitted but not required to reveal information to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm. When the lawyer makes a moral (as opposed to a legal) decision to reveal this information, this rule protects her/him from sanctions.

State v. von Bulow, 475 A.2d 995 (R.I. 1984).  Documents in possession of attorney, who was hired by family members to investigate whether defendant attempted to poison his wife, were protected from disclosure to the defendant by the attorney-client privilege.  However, once the attorney selectively disclosed some confidential documents to help the state build its case, the attorney-client privilege was waived and the disclosure of all related documents was required to the defendant.

• The rationale is that the attorney may not disclose communications it considers favorable to its position while insisting upon protection of the privilege for damaging communications.

• In addition, other communications were determined to be unprotected by the privilege because disinterested third persons were present during some of the meetings between attorney and clients.  “[T]he presence of third persons who are not essential to the transmittal of information will belie the necessary element of confidentiality and vitiate the privilege.”  Id. at 1008 (quoting Hearn v. Rhay, 68 F.R.D. 574, 579 (E.D. Wash. 1975)).

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