Reasonable Doubt: Lawyer-client privilege not always clear-cut

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      One of the most important concepts in our legal system is that of solicitor-client privilege (which goes hand in hand with a lawyer’s duty of confidentiality to their clients). It’s highly important that lawyers hold client communications in the strictest confidence otherwise clients won’t feel safe enough to make full disclosure to their lawyers. Communications are subject to the privilege when three preconditions are met: 1) it’s a communication between a lawyer and client, 2) which entails the seeking or giving of legal advice, and 3) which is intended to be confidential by the parties.

      The privilege can be waived and there are exceptions. The privilege belongs to the client, not the lawyer. This means that the lawyer (usually) can’t disclose what’s been said and only the client can waive the privilege through his or her informed consent. If you voluntarily talk about things that have been said between you and your lawyer, then you’re waiving the privilege.

      There are a number of exceptions. One is called “innocence at stake”: if a person is charged with a crime to which another person confesses to his or her counsel, the privilege can be breached because if not, the accused will be limited in his or her right to make full answer and defence at trial. It’s been held that society has a greater interest in seeing that an innocent person isn’t convicted in that situation.

      Another is the “public safety exception”: if you tell your lawyer that you’re going to injure or kill someone, a lawyer may set aside the privilege if three factors are met: 1) is there a clear risk to an identifiable person or group of persons, 2) is the risk one of serious bodily harm or death, and 3) is the danger imminent?

      A third exception is for “criminal communications”: privilege doesn’t attach to communications that are criminal or made with a view to obtaining legal advice on how to commit a crime. Basically, you can’t ask your lawyer for tips on your planned bank robbery or fraud scheme.

      If you give your lawyer evidence that you committed a crime (i.e. a bloody knife, the smoking gun, bags of counterfeit cash, et cetera) that doesn’t mean the lawyer will hide it for you and it’ll be as if it never existed. Lawyers have ethical and professional obligations to the profession and the court. While there is no one right course of action in all these circumstances, lawyers usually consult with senior lawyers about what they should do and that usually involves turning the item over to the police or the Crown without disclosing the source of the item.

      The notorious convicted murderer, Paul Bernardo, put his lawyer, Kenneth Murray, in the horrifying position of finding evidence that proved his guilt. After the police had finished searching his residence, Bernardo instructed his lawyer to extract videos hidden in a bathroom ceiling and not to watch them. Murray eventually watched the videos, which depicted Bernardo and Karla Homolka engaging in the sexual assaults of two victims.

      Murray had always planned on using the videos at trial, not to hide them away forever. Bernardo told Murray that he was going to deny ever having contact with either of the two victims and that the tapes were not to be used. If Murray followed those instructions, he would have violated the Rules of Professional Conduct. Therefore, Murray withdrew as counsel and the tapes were given to the Crown. Because of the delayed disclosure, Murray was charged with obstruction of justice. He was acquitted because the judge had a reasonable doubt whether Murray intended to obstruct justice. The judge made it clear that, although Murray had no obligation to help the police in prosecuting the crime, it was unlawful to take steps to conceal evidence.

      Criminal lawyers are faced with these issues on a daily basis, albeit usually on a much smaller scale. Of course, in reality, it’s not always clear-cut when these situations arise. While clients must feel free to tell their lawyers everything, lawyers must always be vigilant to ensure that they know when they’re in possession of information that falls into the above categories and what to do about it.

      Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at straight.reasonable.doubt@gmail.com.

      A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.

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      1 Comments

      glen p robbins

      Mar 30, 2012 at 1:20pm

      How do we stop lawyers from essentially trading in clients (who may cause embarrassment or troubled precedent or other) for another deal. This happens often with government. Clients are sacrificed (talked/coerced into settling, lawyers quitting etc if client's don't take the advice) - for a more lucrative situation.