Court-Martial Trial Practice Blog
What do you do, if anything, if your client confesses to a crime for which he is not charged, but someone else is, or where someone else has already been convicted. Not a common practice in the military, or is it. What about the multi-accused drug case for example?
Here’s an interesting article about the potential ethics of that “problem.” Professor Coline Miller posts about: Jean Fleming Powers’ Comparing Exceptions to Privilege and Confidentiality Relating to Crime, Fraud, and Harm—Can Hard Cases Make Good Law?
Professor Miller concludes that there is a reason to avoid the client-attorney privilege in such a case if there is (substantial?) harm to the other client. Based on his argument his point is limited to the convicted person, not the one on trial and not yet convicted.
My claim was that this exception should be read to create a wrongful incarceration/execution exception to attorney-client confidentiality.
Professor Miller notes that Alaska provided for such an except beginning in 2009.
I doubt that most states will follow suit. So, if states aren’t willing to buy this rationale, what is the alternative? According to the recent article, Comparing Exceptions to Privilege and Confidentiality Relating to Crime, Fraud, and Harm—Can Hard Cases Make Good Law?, 79 UMKC L. Rev. 61 (2010), by Jean Fleming Powers, a professor at the South Texas College of Law, the answer is to create an attorney-client confidentiality when revealing confidential information to the extent the lawyer reasonably believes necessary to prevent a significant loss of liberty.