Posted 3/16/2004 9:37 PM
Valued bond between client, lawyer eroding
By Jonathan Turley
While lawyers often are valued for such canine-like attributes as aggression, persistence and even viciousness, loyalty is their most essential attribute. With confidentiality, it represents a type of legal Hippocratic oath: that we will do no harm to our clients.
Two disturbing trends that reduce confidentiality guarantees have surfaced recently: a rise in the number of exceptions to attorney-client confidentiality and an increase in lawyers discussing cases at the expense of their former clients.
The latest example came this month in the case of Scott Peterson, who is on trial for the murder of his wife, Laci, and their unborn child. Judge Alfred Delucchi ruled that the prosecution could use audiotapes that police secretly recorded of Peterson speaking with his first attorney before he was charged. Peterson sought to have these tapes excluded as a violation of his attorney-client privilege, but Delucchi ruled that the content essentially was inconsequential.
Many Americans, no doubt, are eager to hear the tapes and gain glimpses of Peterson in his most unguarded moments. But the rapid loss of confidentiality in attorney-client discussions should concern us far more than what Peterson said to his lawyer. If people — or companies — are worried that their conversations might be used against them, they will lose trust in our government.
The attorney-client privilege, which goes back to the days of Elizabethan England, encourages clients to speak honestly with their lawyers so the attorneys can give legal advice and stop the clients who are contemplating questionable acts. But if the confidentiality of citizens' conversations with their attorneys can be subject to case-by-case waivers — as Peterson's has been — Americans never will really know what will happen to the information they provide to their lawyers. That possibility naturally will encourage clients to be less candid. For lawyers, the loss of guarantees of confidentiality creates a real possibility that their representation could harm a client. In the Peterson case, the lawyer actually became a tool of the police by lowering his client's defenses after giving him what turned out to be a false assumption of confidentiality.