Twice during my years practicing law, situations arose in other parts of the country, and were reported nationwide, in which it became public knowledge that a lawyer representing someone accused of abduction and murder knew quite literally where the body could be found and did not disclose it.
The public reaction in each case was to decry the insensitivity and lack of common decency of a lawyer who could do such a thing. Even lawyers—some academicians and those whose own practices do not involve dirtying their hands with representing the criminally accused—were heard to express a sense of outrage. Nearly everybody wanted the bar association to “do something,” and the entire affair was taken as just one more example of lawyers acting contrary to the public good.
In fact, in each case, the lawyer involved was upholding one of the highest traditions of the bar—the attorney-client privilege. Unfortunately, the importance of that privilege is not easily grasped by one untrained in the law or inexperienced in our adversarial system of justice. Please understand: These were dead bodies that these attorneys were not disclosing the location of. A lawyer who knows, from his client or any other source, the whereabouts of a person who has been abducted and is still alive has an ethical duty to save that life, if he can, by revealing the whereabouts or whatever lawful means may be necessary. That is because the attorney-client privilege is intended as a shield, and not a sword, and does not extend to future illegal conduct of the client or avoidable future adverse consequences of his past acts.
The attorney-client privilege in no way authorizes the lawyer to become a criminal along with his client. It simply demands that the lawyer zealously guard a client’s confidences about past bad acts.
I believe that the attorney-client privilege is logically inherent in our adversarial system of justice. Let me explain what I mean by that.
Our system presumes that each side of the docket will be represented by a skilled courtroom lawyer making every effort to advance that lawyer’s side of the case (by so marshaling the evidence and his argument as to place the client’s case in the best possible light), while similarly employing his best skill to depreciate the value of the other side’s case—and that the jury (or judge, if a jury is waived) is thereby better enabled to ferret out what the truth may be and where justice lies.
The successful operation of such a system requires that the client repose absolute trust in the advocate, who must know all that the client can tell him of the case in order to effectively represent him. On the other hand, few clients—whether civil or criminal—could be expected to “level” with their attorney if they could not be assured of the confidentiality of the communication—that, in fact, the attorney not only could not be made to betray their confidence but could in fact be forced not to do so. It is from these considerations that the attorney-client privilege springs.
Criminal defendants, in particular, would obtain little benefit from having counsel if their communications with counsel could be coercively obtained by agents of the State. A lawyer holds his clients’ confidences much like a trustee holds his money. Just as the money in the hands of the trustee belongs to the client, so the right to allow or disallow disclosure of matters told the lawyer in confidence belongs to the client. The system won’t work any other way. The lawyer has no right—absolutely none—to waive the attorney-client privilege, even when the lawyer’s professional judgment says that the client would be better served by disclosure or the private judgment of the lawyer suggests that prudence (or decency or propriety) demands disclosure. If it were otherwise, then the privilege would belong to the lawyer and not the client.
I got a call one day from an older couple whom I had known for years. Their son was in jail, charged with the murder of his wife. They had been unable to see him, and really knew nothing about the situation, other than what was in the newspapers.
I never read crime stories in the newspapers (unless my name is in them, of course), primarily because I spend most of my waking hours involved in one criminal case or another and see no reason to add to that based on what the city editor thinks should be on page one today.
I turned to the newspaper and found that the story was the headline story, and the matters set forth in the newspaper alone raised immediate questions regarding the sanity of whoever had committed the act. To relate the matters set forth in the newspaper would be tantamount to identifying the client; suffice it to say that the circumstances surrounding the killing and the finding of the body were bizarre in the extreme.
I went to jail to see the man, whom I knew slightly. I was met in the attorney visiting room by the most clearly mentally ill person I had ever interviewed. He did not appear to know me, and was unable to maintain a conversation on the subjects of his being in jail and what involvement he had had, if any, in the death of his wife.
He communicated a number of things to me on that trip to the jail, while in that state, that made his lack of any grasp whatsoever of reality perfectly obvious. What he said to me, however, I cannot say, for reasons which will appear shortly.
I called his parents and sat down with them for a talk. I explained that the man I had seen at the jail was pretty clearly incompetent to stand trial, and might very well have been legally insane at the time the crime was committed. In order to be competent to stand trial on an allegation of criminal conduct, a defendant must have a rational, as well as factual, understanding of the charges against him and of the proceeding. In addition, he must be able to communicate with his attorney with a reasonable degree of rational understanding so that they may prepare his defense. This young man was clearly incompetent, on all counts. Whether he had been insane at the time of commission of the offense was, however, a much more problematic question. For legal insanity, the test at that time in Texas, was whether, at the time of commission of the offense, as a result of mental disease or defect, the defendant was incapable of distinguishing right from wrong—or, if he could distinguish, was unable to conform his conduct to the requirements of the law he allegedly violated.
I knew he was at least a bubble and a half off plumb when I interviewed him, but that was several days after the woman had been killed, and I had no way of knowing whether his mental state caused the killing or the realization of the enormity of the act had brought about the break with reality (if in fact he had committed the act).
They were, I knew, people of modest means, and completely unable to fund the extensive legal and psychiatric problems facing their son. I explained that even if I gave them a substantial break on my fee, or even waived it altogether, they were still going to be unable to bear the other costs that would be attendant to defending their son on a psychiatric basis.
I explained that they had no legal obligation to do so, and that if their son was unable to afford to retain counsel he would be entitled to court-appointed counsel—who could in turn petition the court to have their son evaluated and treated by the county psychiatrist, a retired military doctor I knew to be quite competent.
After that, I had no involvement in the case (other than conveying deposits to his inmate account for toothpaste and the like for his parents) for well over a year. He obtained counsel, and a hearing was had on the issue of his competency to stand trial. He was found incompetent and committed to the State Hospital at Rusk, Texas.
When he returned from Rusk, declared competent to stand trial, his lawyer called me to determine my availability as a witness on the question of his alleged insanity at the time of the offense. I had no direct knowledge, of course, but the lawyer hoped my evidence about his condition when I saw him might help the psychiatrists determine his mental state at the earlier time.
I said that I would help, of course. I just asked him to verify that the defendant was willing to waive the attorney-client privilege so I could tell the jury what he had said to me, and not just my general impressions of his mental state. The lawyer promised to talk with him about that. The next time I heard from the lawyer, he informed me that the defendant would not waive the attorney-client privilege and did not want me to reveal what he had said. The lawyer assured me that he had explained repeatedly how much it would detract from my testimony if I had to answer that I could not reveal what he had said due to the attorney-client privilege. The defendant had remained adamant.
I wondered, frankly, whether the defendant was really competent to stand trial and if he had made such a decision. I asked the lawyer if I could talk to his client directly to see if I could make the man understand the problem. He readily agreed.
The man I saw was a far cry from the one I had seen in jail months earlier. He was clearly “oriented times four,” as the psychiatrists say, clearly in command of all his faculties. He listened patiently to what I had to say, told me he understood that the decision might hurt him, but insisted that I maintain his confidences.
I testified and did the best I could to convey how deranged I found the man to be, but I could virtually see the jurors dismiss my testimony out of hand when, on cross-examination, to the prosecutor’s question as to what he had said that made me feel as I did, I could only answer that I was unable to say due to attorney-client privilege.
The jury found against him on the insanity defense, convicted the defendant, and gave him a long sentence. “Stone walls do not a prison make,” said Richard Lovelace, “nor iron bars a cage.” I don’t know to this day why he insisted upon maintaining the privilege, but the call was his. I still don’t see how we could have it any other way.
