Attorney-Client Privilege

[HDCarter]

Regarding attorney-client privilege - Is an attorney required to remain quiet, having unquestionable knowledge that someone has been wrongly convicted of a capital crime for which the death penalty has been handed down? Does the attorney-client privilege extend to permitting a (wrongful) death sentence to be executed on an innocent person? That essentially advocates murder by the state. In the case of a life (yet wrongful still) sentence, liberty is denied, but life (?) is preserved.

[fredpuli47]

This is a British site. Nobody American here posts answers in the Law section. You are obviously not British : we don't have 'attorneys' . We have barristers and solicitors.Furthermore,unlike most states in the USA , we do not have the death penalty. No European country does.

I can tell you the position under English law and professional ethics. In the unlikely circumstances you give, the lawyer has a moral duty to report the evidence that shows the innocence or wrong conviction of the person.That would be his or her professional duty, too.Let's face it, the duty is to protect the client's interests, not get him jailed or executed! If the information which the lawyer reported meant that the lawyer became a potential witness in any investigation,any appeal proceedings or any retrial, the lawyer would then stop acting for the client.

In lawyer-client privilege, the privilege is the client's, not the lawyer's, and extends to all conversations held, and advice given, relating to the case. The lawyer will not divulge these matters, unless expressly authorised or told to do so by the client.

[johnny37]

fred, does the lawyer not have a legal obligation to divulge any evidence to the police, like we all do? Ideed is he not comitting an offence by withholding evidence, like anyone else?

[fredpuli47]

Johnny37. That depends what it is.He isn't allowed to tell the police what the client tells him, nor anything else which falls within privilege.Don't worry too much about that. There are exceptions to privilege: not everything which would fall within the broad definition of privilege is , in law, privileged. For example,any communication which is made for the purpose of obtaining advice on the commission of a future crime , or which is itself part of a crime isn't protected.(In one case a solicitor was sending menacing, abusive and obscene telephone calls on behalf of his client. Not a good idea: that was itself an offence under the Telecommunications Act 1984, quite apart from what the Law Society, his profesional body, would say!) Likewise documents obtained in contravention of domestic or foreign law canot be privileged.

Concealing evidence? Starting with speaking:even your supposed obligation to speak has limits. There is no such broad rule.Keeping silent is not an offence in itself, whatever you've seen or heard.You don't have to volunteer yourself as a witness.There are a few crimes of silence but they are special cases. One is 'concealment of evidence': X has committed an offence and Y knows that. Y has information which might be of material assistance in securing the prosecution or conviction of X. Y then accepts or agrees to accept payment for not disclosing that information e.g (X 'buys his silence'). Y is guilty of that offence.

As to physical evidence, there's no general obligation to produce or reveal the whereabouts of objects or papers which might be of use in a criminal investigation.Trouble is that a positive act, not doing nothing, which tends to pervert the course of justice is an offence and, of course, police may (subject to various rules) conduct searches and seize property and you are not allowed to obstruct them in so doing.