Should Defense Attorneys be Able to Report Client Confessions When Another Has Been Convicted of the Crime?

Last night, I attended the installation dinner for the Association of Criminal Defense Lawyers of New Jersey. This is a wonderful organization with some of the finest attorneys in the State. The keynote speaker was the extremely thoughtful, New Jersey Supreme Court Justice, Barry Albin. Justice Albin was, before his appointment to the Bench, a prominent defense attorney.

The topic of the talk was the above question: should the Rules of Professional Conduct be amended to permit attorneys to report client confessions, when another has been convicted of the crime? Justice Albin appeared to believe that the Rules of Professional Conduct in N.J. should, as they have been in MA, be amended to permit attorney disclosures to prevent manifest injustice. Justice Albin contended that the Rule would come into closer conformance with moral norms.

While I highly respect Justice Albin, I am not so sure I agree with him that attorneys should be permitted to disclose such client confessions. As an initial matter, I do recognize the troublesome question of anyone, particularly an attorney, remaining silent while an innocent person serves a jail sentence. On top of that moral quandary, the emotional toll on the attorney would be enormous. That being said, there are simply too many problems, in my mind, which would flow from such permitted disclosure.

First, the attorney-client privilege is intended to promote candid communications by clients. If the Rule were changed, such candor would be unwise for clients. This purpose would be undermined.

Second, such an exception could place attorneys at risk. If a hypothetical client is an admitted murderer, would he hesitate to eliminate his attorney if he knew the attorney were permitted to turn him in?

Third, such disclosures might be misused to disrupt legitimate convictions. There is little reason to believe that a client's confession is necessarily truthful. Perhaps false, manufactured confessions might be made to cast doubt upon a cohort's conviction. One Sean Connery-Blair Underwood film comes to mind.

Fourth, it is far from clear how such disclosures would even be used to avoid manifest injustice. If an attorney did disclose to authorities, what would happen? No doubt the authorities would investigate. The client is represented by counsel and could not be questioned. Even if he were questioned, he would deny the purported confession. Would his former attorney now be a witness against him? If authorities could not corroborate the confession, where would that leave the already-convicted? How could authorities prosecute the confessor? Presumably law enforcement did not already have sufficient evidence to charge the confessor.

Fifth, if the disclosure Rule were amended for attorneys, then why not for other protected communications? In other words, would priests and physicians then be permitted to make similar disclosures? This would rework the Rules of Evidence substantially and cause havoc among the public's expectations, formed by centuries of jurisprudence.

In sum, this is a very interesting and troubling situation. The proposed cure may, however, be equally problemmatic.