Attorney-Client Privilege: The Primary Principle of Criminal Defense

I distinctly recall the look of concern (perhaps, skepticism) on my wife’s face the first time we met. The cause for her concern arose when our conversation hinged on my answer to the question “What do you do for a living, Pete?” “I am a criminal defense lawyer,” I answered. Then the inevitable next question: “How do you defend people knowing they are guilty?” As this was neither the time nor the place to debate the topic, my answer was short “easily.”

The attorney-client privilege, applicable to all areas of the law, is especially vital in the practice of criminal defense. A criminal defense lawyer must act upon accurate information relayed by the client in order to appropriately advise and defend the client. The privilege is designed to allow the client to advise his/her attorney of all pertinent details, even the bad ones, without fear of this information being relayed to others, particularly the government.

Rule 1.6 of Pennsylvania’s Rules of Professional Conduct, “Confidentiality of Information,” directs lawyers to keep information relayed to them by a client confidential unless the client consents to the disclosure. There are four significant exceptions to the rule. First, this Rule is trumped by another, Rule 3.3 “Candor Toward the Tribunal.” Basically, this means that a lawyer and client cannot rely upon the privilege to advance materially false facts or law to a judge.

Second, the privilege is pierced if the client advises the attorney of an intent to commit a crime likely to result in death, substantial bodily harm or substantial financial or property damage (i.e., client tells attorney “I am going to kill John Doe the day after tomorrow.”) The lawyer’s obligation, in this circumstance, is to attempt to convince the client not to commit the crime, and in the event the attorney remains of the opinion that the client will nevertheless do so, the attorney may go to the authorities.

Third, the privilege may be voided in the event that the lawyer learns that his services are being used to perpetrate a crime or a fraudulent act. Fourth, a lawyer is permitted to breach the privilege in order to defend him or herself against allegations by the client (examples include allegations of ineffectiveness, unethical behavior or fee disputes).
My expanded answer to my wife’s question regarding my defense of individuals I know are guilty: it is always the burden of the government to prove my client guilty beyond a reasonable doubt. There is nothing inappropriate, improper or unethical about putting the government to its burden. Of course, if the client does advise that s/he committed the crime, s/he cannot testify that s/he did not. This would be perjury and obviously run afoul of “candor toward the tribunal” as well as multiple criminal statutes. As a defense attorney in the context of going to trial after a client has advised me that s/he committed a crime, I am permitted to argue that the Commonwealth has not borne its burden, i.e., that there is a reasonable doubt as to whether the crime was committed, while not offering false evidence nor making false arguments regarding my client’s actual innocence. This is a subtle, yet important, distinction.

In reality, usually when a client comes into my office and advises me that s/he has committed certain criminal acts, s/he has also advised others of this fact already (normally the police). However, in those cases where the client tells me and no one else of their culpability, I am permitted, indeed directed, by the ethical rules applicable to lawyers to keep it to myself and give the client my best advice and best defense. My wife, while not totally comfortable with this idea, has seen fit to accept it, as evidenced by the fact that she did agree to marry me. I have even had the occasion to hear her answer for me the question of “How do I represent people knowing they are guilty?”