A Problem in Privilege

What would you do if you could save an innocent man from a murder conviction, but had to break attorney-client privilege rules to do so?

http://www.chicagotribune.com/news/local/chi-secretjan19,0,3767780.story?page=1

http://www.cbsnews.com/stories/2008/03/06/60minutes/main3914719.shtml

-- TedKreit - 07 Mar 2008

I think that from an outside perspective when it comes to the overall needs of the legal profession, this decision makes a lot of sense. If they had broken privilege, not only would they have incriminated their client, but also they would have ruined the trust that countless other future clients would have with their attorneys. However, when I put myself in that situation, I'm not so confident that I would have made the same decision that they did.

-- AndrewWolstan - 11 Mar 2008

I am not sure how to solve the legal problem, because the objectives I understand to be at issue seem somewhat exclusive. Were I in this position, the two goals would seem to be 1) prevent the innocent man from ending up in jail; and 2) prevent your client's admission from affecting his legal situation.

(We haven't studied professional ethics yet, but I would argue that the broad reading of privilege implied by goal 2 is necessary for client privilege to have any real meaning. Privilege could be even more broadly read to not allowing your actions to affect your client's situation in any way, legal or social, but I don't know how strictly it is meant to be construed)

When the innocent man goes to prison, your client has basically no chance of being brought up for the crime. Any action that would leave some chance of your client going to jail would therefore change your client's legal situation. Therefore, if your solution to 1 causes the investigation to remain open without providing immunity for your client, you automatically increase the chances that the crime in question will be pinned on your client, thus defeating 2.

So in order to achieve both goal 1 and 2, you must achieve goal three: 3) Either find a way to get immunity for your client, or make sure the investigation of the crime ends after achieving 1. This seems like a tall order.

Maybe you could work something out with the prosecutor - I don't know enough about how the politics of such things work though, and I can't imagine that the prosecutor would be ready to just drop the case. Compounding the problem is the fact that, according to the article, the client does not seem eager to get the innocent man off, so it might be hard to get his cooperation.

-- TheodoreSmith - 18 Mar 2008