Copyright (c) 2000 Marquette Law Review
Marquette Law Review
COMMENT: OVERRIDING THE POSTHUMOUS APPLICATION OF THE ATTORNEY-CLIENT PRIVILEGE: DUE PROCESS FOR A CRIMINAL DEFENDANT
83 Marq. L. Rev. 785
Tyson A. Ciepluch
Imagine the following scenario. 1 A client tells her attorney in confidence that she has committed a crime. The client dies before the government begins any prosecution for the crime. Later, the government institutes a criminal prosecution against another person for the crime at issue. The lawyer for the deceased becomes aware of the prosecution either because the criminal defendant attempts to call the lawyer as a witness or through other channels known or unknown to the defendant. In either case, the lawyer cannot disclose this information because of a duty of confidentiality to the deceased client, 2 and because of the attorney-client privilege. 3
The above scenario serves as a hypothetical in law school ethics courses and also occurs in legal practice. 4 In practice, the quality of the information expressed by the decedent-client to her attorney may vary. A client's communication might range from that which will surely exculpate a current defendant to information that might minimize a defendant's involvement in a crime. In addition, an attorney might not know how such a client communication would affect a current defendant, if at all. 5 Nonetheless, a criminal defendant may have a strong interest in the information. 6 What is a lawyer to do knowing that another person faces criminal sanctions, possibly severe ones, for a crime likely committed by a deceased client? The current answer is that an attorney is prohibited from disclosing the confession of the deceased client. 7 The question is troubling because ...
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