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Dale's Blog

The rules of attorney-client privilege

Attorney-client privilege offers tremendous protection to the client that information conveyed to the lawyer will remain protected. Among lawyers, it's almost a sacred notion that they won't reveal anything their clients tell them. I wrote about it for this column in the Toledo Blade.

Under the Ohio Rules of Professional Conduct, a lawyer is barred from revealing information relating to representation of a client unless the client gives informed consent. Though there are a few exceptions, a lawyer breaking this rule could lose his or her license to practice law.

The idea behind this rule is that a client must be able to trust his lawyer in order for the lawyer to properly represent him. So a client must have confidence that what he says to his lawyer will stay between them, even if the client confesses to committing a crime.

Things get tricky, though, if a client tells his lawyer about a planned crime. Rules vary between jurisdictions, but in Ohio, a lawyer may reveal privileged information in order to prevent reasonably certain death or substantial bodily harm, or to prevent a crime by the client or another person. The lawyer also may reveal privileged communications to protect substantial injury to someone's financial interest stemming from a client's illegal or fraudulent act if the client has used the lawyer somehow to further the crime.

It might be helpful to use a few hypothetical situations to drive these points home. If a client came to me and confessed to killing his neighbor because the neighbor continued to let his hedges grow too tall - thus blocking the sun to the client's garden - I'd be ethically bound to keep that to myself. This would be true regardless of whether the client actually was a defendant or the police didn't know the killer's identity.

If, on the other hand, a client came to me and said he planned to kill his neighbor because he was so distraught over the hedges blocking out the sunlight, and that he had purchased the gun and practiced at the shooting range, I could reveal that information to prevent the killing. I would not be obligated to run to the police or the neighbor, and I would be within my ethical bounds as a lawyer to do nothing at all.

I think most people understand the concept that a lawyer can't reveal a client's confession to a crime already committed. It's a much more difficult notion that a lawyer has discretion whether to reveal a privileged communication that could save someone's life. It pits societal morality against legal professional ethics. As you can imagine, it would place the lawyer in a tremendously difficult position because we're trained to keep conversations with our clients secret. And it's worth noting, conversations with prospective clients are protected in the same manner as those with actual clients.