Privilege Breakdown

 Posted on August 17, 2007 in Uncategorized

After Gideon's two posts (here and here), Scott Greenfield's two posts (here and here), and my two posts (here and here), here's how I see attitudes about the revelation of communications from the lawyer to the client shaking out:

Some (edit: but not Gideon) believe that it is okay for a lawyer to reveal such communications to pretermit a possible future claim of ineffectiveness - to "make a record" against the client.

Some believe that it is not okay to make a record against the client, but that it is okay for a lawyer to reveal such privileged communications if revelation would not hurt the client - for example, if the communication was one that the lawyer was ethically required to make. New York criminal-defense lawyer Scott Greenfield holds this opinion. He will preserve confidentiality, but not at the cost of antagonizing the judge unnecessarily. (edit: Scott Greeenfield, whom I believe to adhere to the highest ethical standards, makes it clear that he does not consider his communication of a plea offer to a client to be a privileged communication.) (The argument that lawyer communications are not privileged because they are ethically required has no legs.)

Some believe that it not okay to reveal what the lawyer said to the client, even if it was something the lawyer was required to say, unless revelation would help the client. I am definitely of that opinion. It's a bright-line test with a presumption against revelation. I may be wrong, but if I'm going to be wrong I want to err on the side of maintaining privilege, rather than waiving it.

I understand Scott's point about antagonizing the judge. A more sophistical lawyer than Scott, however, might rationalize just about any revelation as furthering the goals of representation by not antagonizing the judge unnecessarily.

Often an antagonized judge is the inevitable byproduct of our doing our jobs properly. If a client told me, "don't antagonize the judge," then I could increase what I reveal based on the client's waiver. But this issue - preservation of the confidentiality of what we say to our clients - is one of those cases in which I think it is worth butting heads with the judge.

Most judges, like most lawyers, have a very fuzzy understanding of the ethical rules that govern the defense of criminal cases. They expect us to make records against our clients because that's what we (the criminal defense bar generally) have historically done.

If we all took Scott's position - that revelation is acceptable unless harmful to the client - then they would expect us to reveal all of the things that we believed, at the time, would not harm our clients.

And if we all took my position - that revelation is acceptable only if helpful to the client - then it would neither surprise nor antagonize them that we revealed only that which would help our clients and otherwise stood mute. They might even stop inquiring into privileged matters.

I wonder which attitude the clients would prefer.

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