by David R. Dow
ABOUT TWELVE
TWELVE was established in August 2005 with the objective of publishing no more than one book per month. We strive to publish the singular book, by authors who have a unique perspective and compelling authority. Works that explain our culture; that illuminate, inspire, provoke, and entertain. We seek to establish communities of conversation surrounding our books. Talented authors deserve attention not only from publishers, but from readers as well. To sell the book is only the beginning of our mission. To build avid audiences of readers who are enriched by these works—that is our ultimate purpose.
Copyright
Copyright © 2010 by David R. Dow
All rights reserved. Except as permitted under the U.S. Copyright Act of 1976, no part of this publication may be reproduced, distributed, or transmitted in any form or by any means, or stored in a database or retrieval system, without the prior written permission of the publisher.
Twelve
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Twelve is an imprint of Grand Central Publishing.
The Twelve name and logo are trademarks of Hachette Book Group, Inc.
First eBook Edition: February 2010
ISBN: 978-0-446-57394-8
Notes
1
See MODEL RULES OF PROF’L CONDUCT R. 1.6 (2008) cmt. [3] (explaining distinction between attorney-client privilege and duty of confidentiality). Throughout this piece, I will often refer to the American Bar Association’s MODEL RULES OF PROFESSIONAL CONDUCT. Although ethical standards vary from jurisdiction to jurisdiction, the MODEL RULES have been quite influential, having been adopted in large part by the majority of jurisdictions.
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2
The attorney-client privilege is one of the oldest privileges recognized in common law. In its classic form, it provides that confidential communication between an attorney and client is protected from disclosure forever unless waived. See 8 J. WIGMORE, EVIDENCE, § 2292 (McNaughton rev. 1961). Based on this classic formulation, all modern jurisdictions recognize the attorney-client privilege. See, e.g., FED. R. EVID. 501 (providing that attorney-client privilege “shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience”); CAL. EVID. CODE § 954 (2003) (providing that “the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer”); TEX. R. EVID. 503 (providing that a “client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client”).
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3
Commonly recognized exceptions to the attorney-client privilege are usually limited to the crime-fraud exception (when the client consults with the attorney for the purpose of committing a future crime or fraud) and the testamentary exception (where a testator’s communication with counsel in drafting a will is revealed in order to establish testamentary intent). See Swidler & Berlin v. United States, 524 U.S. 399, 409–10 (1998) (discussing these limited exceptions to the attorney-client privilege).
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4
See MODEL RULES OF PROF’L CONDUCT R. 1.6(a) (2008) (providing that a “lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent”).
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5
See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. [3] (2008) (“The confidentiality rule… applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source”).
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6
See MODEL RULES OF PROF’L CONDUCT R. 1.6(b) (2008) (setting forth exceptions to the duty of confidentiality, which include preventing reasonably certain death or substantial bodily harm or preventing client from committing a financial crime or fraud).
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7
See Swidler & Berlin, 524 U.S. at 403 (“The privilege is intended to encourage ‘full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice’ ” [quoting Upjohn Co. v. United States, 449 U.S. 383 (1981)]); MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. [2] (2008) (explaining that ethical duty of confidentiality encourages clients to speak “fully and frankly” with their lawyers, “even as to embarrassing or legally damaging subject matter”).
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8
See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. [2] (2008) (describing trust as “hallmark” of attorney-client relationship).
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9
See Upjohn Co., 449 U.S. at 390–91 (explaining importance of attorney-client privilege in enabling attorney to know all facts that client knows in order to determine what is legally relevant [citing MODEL CODE PROF’L RESPONSIBILITY EC 4-1 (1983)]).
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10
See, e.g., United States v. Zolin, 491 U.S. 554, 562–63 (1989) (describing purpose of crime-fraud exception to attorney-client privilege as preventing client from communicating with lawyer for purpose of obtaining advice for commission of future crime or fraud).
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11
See MODEL RULES OF PROF’L CONDUCT R. 1.6(b)(1) (2008).
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12
See MODEL RULES OF PROF’L CONDUCT R. 1.6(b)(2) & (3) (2008) (adopted in August 2003).
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13
See Swidler & Berlin, 524 U.S. at 407 (explaining that clients concerned about reputation, civil liability, or possible harm to friends or family are more willing to be frank with their attorneys because of the attorney-client privilege).
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14
See id. at 410 (“It has been generally, if not universally, accepted… that the attorney-client privilege survives the death of the client”).
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15
See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. [2] (2008) (describing duty of confidentiality as contributing “to the trust that is the hallmark of the client-lawyer relationship”).
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16
See, e.g., MODEL RULES OF PROF’L CONDUCT R. 1.7 (governing concurrent conflicts of interest) & 1.9 (governing successive conflicts of interest).
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17
See Swidler & Berlin, 524 U.S. at 408 (recognizing potential loss of evidence due to privilege, but justifying the loss by explaining that without privilege, “the client may not have made such communications in the first place” so the “loss of evidence is more apparent than real”).
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18
See generally Laura Rothstein, Law Students and Lawyers with Mental Health and Substance Abuse Problems: Protecting the Public and Individual, 69 U. PITT. L. REV. 531 (2008) (explaining that rates of depression and substance abuse are much higher than those of general population); Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 VAND. L. REV. 871 (1999) (discussing high rate of depression, mental health issues, and substance abuse within legal profession).
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19
See Maurice Possley, Inmate’s Freedom May Hinge on Secret Kept for 26 Years, CHI. TRIB., Jan. 19, 2008.
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20
See Matthew Walberg, South Side Man Finally Free After 26 Years, CHI. TRIB., Sept. 5, 2008.
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21
See Possley, supra note 19 (describing how Wilson’s attorneys were “haunted” over the years for not being able to disclose Wils
on’s confession).
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22
From a legal ethics position, their decision was not debatable. They had no option but to keep this secret, as it concerned a past crime. See, e.g., United States v. Zolin, 491 U.S. at 562–63 (explaining that attorney-client privilege protects communications regarding past crimes).
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23
See, e.g., 60 Minutes (CBS television broadcast Mar. 9, 2008) (covering story of Alton Logan and representation of Andrew Wilson by attorneys Dale Coventry and Jamie Kunz).
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24
See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. [4] (2008) (providing that “lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved”).
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