The Loss of Attorney-Client Privilege

From reliable sources I learned that feathers ruffled from a recent post on the loss of privilege when a “professional” became aware of “child abuse” during their professional interaction with clients, patients, and the like. The post related to an attorney’s duty to report. What really got someone upset was my vehement position on the criminal defense attorney’s duty of loyalty toward their client, even concerning communications about possible child abuse. Here was my quote:

“Rest assured, I believe my duty of loyalty to a client trumps even the duty to report. Over my dead body will the government compel me to reveal communications made by clients in confidence.”

First of all, potential clients need to know when they call me to discuss legal problems, what they tell me will remain confidential. Certainly, that is Lawyering 101. If a client wasn’t assured communications were secret, the chilling effect upon attorney-client relationships would be devastating, to say nothing of the attorney’s duty to report these confidences. Nobody would trust anybody, especially their defense lawyer. Beyond that, the last thing a paying client wants to learn is the information just revealed to their lawyer will now be revealed to the police.

Rest assured if someone called me explaining they were in the midst of criminal activity, of any kind, my first instruction would be to terminate the criminal activity immediately. I’m a loving father and certainly encourage the protection of children from any abuse. In fact, the ethical rules to which I am professionally bound require me to reveal a confidential communication “[w]hen the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.” But this ethical rule pertains to future criminal acts. What about past acts, particularly involving child abuse?

The feather ruffling issue concerned an attorney’s duty to report “past” acts of child abuse after a client consulted with the lawyer for their professional services. In particular, what was the lawyer’s duty if someone called them on the telephone, told them they had sexually molested a minor child, and needed the lawyer’s professional legal services to protect them? My position last week was “hell no.” However, after consultations with my reliable sources and another look at the Texas Disciplinary Rules of Professional Conduct I might need to qualify my “hell no.”

The ethical rules also say: “A lawyer may reveal confidential information: ‘when the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.'” So, is Section 261.101 of the Texas Family Code “other law” compelling a defense attorney to reveal private information otherwise protected? My professional instinct says no. But I’m willing to leave the question open for a time and allow my reliable sources to help me figure this out.

It’s a difficult question. It also directly affects my practice of criminal defense law and the practice of law for thousands of professional colleagues all over the state facing similar ethical dilemmas. We’ll revisit this again soon.

 

Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.

Related Posts:

The Ways a Criminal Attorney Can Help You

Areas of Practice – Sexual Assault

Should Attorneys Allow their Clients to Tell Them the Whole Truth?

Criminal Defense Overview

 

By | 2018-06-01T20:31:12+00:00 May 10th, 2018|Categories: Personal Thoughts|Tags: , , |2 Comments

About the Author:

Stephen Gustitis has practiced criminal law exclusively since 1990. First as an assistant district attorney with Brazos County and then in private criminal defense practice. He is Texas Board Certified in criminal law.

2 Comments

  1. Elaine Mitsubi June 19, 2018 at 12:52 am - Reply

    My question here is, “When an attorney is contacted by phone, is the individual calling already a client or is the individual seeking future counsel?”

    In the above child abuse scenario, if the caller is not a current client, how can an attorney provide future representation to an individual who has admitted guilt beforehand?

    In the above child abuse scenario, if the individual calling is already a client, and admits quilt, is the attorney professionally bound by ethics to recuse himself/herself from moving forward? Are there legal guidelines which support an attorney’s withdrawal without divulging privilege?

    Thanks.

    • Stephen Gustitis June 19, 2018 at 3:42 pm - Reply

      When a person calls a lawyer seeking representation, they are not yet a client. However, the conversations between the lawyer and prospective client are still protected by the attorney/client privilege. Furthermore, even if a person admits guilt to the lawyer, the government still bears the burden of proving the person guilty. That is where the lawyer can provided zealous and ethical representation, even if they know their client is guilty. If the government cannot prove guilt beyond a reasonable doubt, the person wins! Lastly, an attorney is never required to withdraw from representation, except in a limited number of exceptions. Even if the attorney decides to withdraw, there are ethical rules which still prohibit the lawyer from revealing privileged information, again except in a limit number of circumstances.

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