Is attorney-client privilege absolute? In late November, an appellate court in California indicated that there are exceptions.
The case involved the issue of whether or not a defense attorney should be permitted to testify against a former client when the former client had threatened to kill or injure potential witnesses against him and kill his former attorney.
While most people consider the attorney-client privilege as all-encompassing, the law states that there is no privilege “if the lawyer reasonably believes that disclosure of any confidential communication is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.”
In the trial against a Mr. Dang, his previous attorney, Mr. Smith, testified that he understood the law to require him to inform the District Attorney’s Office of Mr. Dang’s threats, and subsequently testify against Mr. Dang.
Los Angeles Superior Court Judge Victor Person agreed and a united Appellate Court affirmed. Mr. Dang’s appellate attorney, Bob Horner, is concerned that this decision will create distrust between a lawyer and his client. According to Mr. Horner, “now defendants are going to look at you like you’re working for the government or you’re a snitch.”
This is absolute nonsense. When people come into my office, they know that what is said in the office will remain in the office. In my twenty-plus years of practicing criminal defense law, I have yet to hear a client suggest that he was going to injure or kill a witness, nor have any threats been made against me.
A lawyer can still honor his relationship with his client, yet do what he needs to do to prevent a death.
In my other vocation, as a psychotherapist, the law similarly requires me to alert a potential victim if my patient makes a serious threat of imminent harm to an identifiable person. Under that circumstance, as a therapist I am obligated to alert both the police department closest to the proposed victim, along with the proposed victim himself.
Frankly, I find each obligation appropriate. Clients come into a lawyer’s office expecting that what they say will be kept private. Clients come into a psychotherapist’s office expecting what they say to be kept private. People have to realize, however, that there are limitations and that society has decided that while keeping one’s confidence is important, it comes in second when the alternative is having someone harmed or killed. I don’t see any reason to change either standard, as, while the sanctity of the attorney-client and psychotherapist-patient relationships are important, the protection of human life is more so.
Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger, Danis & Grover, and a psychotherapist at the Foothill Centre for Personal and Family Development. Mr. Unger writes a bimonthly column on legal and psychological issues. He can be reached at firstname.lastname@example.org or at (818) 244-8694