April 2014

Secrets and Privileges of the Law

Author: Sam Bauer


“Psst. Can you keep a secret?” If you are a lawyer, the answer must be in the affirmative, even if that secret is literally where the bodies are buried. It is readily accepted that doctors are prohibited from disclosing information about their patients, and priests (and other clerics) are required to maintain the secrets disclosed to them by the penitent. The attorney’s similar obligation to maintain the secrets of clients can often present situations that, though legally clear, are morally clouded. The most essential component of the attorney client relationship is the knowledge that the client’s secrets must not be disclosed by the lawyer. The South Carolina Rules of Professional Conduct, the ethics rules governing lawyers, make it clear that “The lawyer shall not reveal information relating to the representation of the client.”

Any lawyer breaching that first commandment of the legal profession puts his or her license to practice law in jeopardy. This duty to keep the client’s secrets is known as the “attorney- client privilege.” The privilege has been referred to by legal scholars as the pivotal element of the relationship and indispensable to the legal system. The client must be free to tell the lawyer everything about the case, good, bad or monstrously evil.

The most notorious example of the lawyer’s obligation to maintain the client’s monstrously evil secrets is the case of In re Belge. Two lawyers were appointed to defend Robert Garrow, who stood accused of murdering a teenage boy. Garrow not only admitted to his lawyers that he had killed the boy, he also admitted to killing two teenage girls and gave the lawyers the exact locations of the bodies. During the following months and years, the parents of the missing girls repeatedly appeared on TV and in newsprint, begging for information about their daughters. The lawyers weren’t immune to the tearful enjoinders from the girls’ parents; there was simply nothing they could do about it. Eventually Garrow admitted his crimes, and the lawyers promptly led police to the location of the decomposing bodies.

When the community found out that the lawyers had known the victims’ locations for months, the lawyers received death threats and their business failed. A grand jury even went so far as to indict one of the lawyers for not coming forward with the information. Ultimately, both lawyers were cleared of any wrongdoing.

While the obligation to maintain the client’s secrets is absolute with regard to any past actions, the lawyer is not required to maintain as secret the client’s plans to commit future bad acts. South Carolina has adopted a very broad exception that allows the lawyer to disclose a client’s plans to commit a crime or to harm another person.

The United States Supreme Court addressed the importance of attorney-client privilege in an 1888 opinion. “The rule which places the seal of secrecy upon communications between client and attorney is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences of the apprehension of disclosure.”

As our legal system is derived from the English system, it should not be surprising that attorney-client privilege existed in medieval England and is documented as early as 1272. The privilege, however, is much older than that. Cicero, the greatest lawyer of Roman antiquity, suffered a defeat in the trial of the former provincial governor of Sicily, as he could not compel the governor’s lawyer to divulge the contents of communications with the governor.

The attorney-client privilege is “pivotal,” “necessary” and “indispensable” to the American system of justice. In the modern world, our legal procedure and the technical aspects of the various forensic sciences, make it impossible for any party to win a case without the benefit of an attorney’s advice and counsel. The client must be comfortable in the knowledge that he can be completely honest with his lawyer and his secrets will be held in complete confidence. 

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