In a story reminiscent of Theodore Dreiser’s classic tale of greed and murder, An American Tragedy (love-struck pregnant girl-friend drowned by social-climbing fiancé), much of the nation has been mesmerized since last Christmas by the disappearance of Laci Peterson, the late-term pregnant wife of Scott Peterson. Though he has not been arrested by the Modesto, California police in connection with Laci’s disappearance, Peterson tops most people’s lists of prime suspects. For many observers, what pushed Peterson to first place was his reported hiring of a criminal defense lawyer.
While Scott Peterson has a serious problem, so, too, may his lawyer.
Let’s examine a hypothetical set of facts – emphasizing that they are only hypothetical – and that, not being privy to the facts of the case, I am not accusing Scott Peterson of any wrongdoing.
Suppose Peterson kills his wife and disposes of her body in such a manner or place that it’s unlikely Laci will ever be found. Then he hires a criminal defense lawyer. Suppose that, in a privileged attorney-client conversation, he reveals to the attorney where Laci’s body is hidden, or how he disposed of it. Soon after, the lawyer sees Laci’s grieving family on television and hears them beg for any information that will, at best, help find Laci alive or, at worst, confirm her death. The lawyer has to know the family desperately needs closure. And knowing he alone is in a position to provide it, his nobler impulse prevails and he picks up the telephone.
Then he hesitates – and for good reason.
Section 6068 (e) of the California Business & Professions Code provides that "It is the duty of an attorney [t]o maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client." Clearly, Scott Peterson is the lawyer’s client. Clearly, the lawyer learned what happened to Laci’s body from his client. Clearly, the information Peterson imparted was in confidence and was a secret. Accordingly, it would seem that the lawyer’s lips must remain sealed – despite the ongoing harm to Laci’s family, and despite the continuing inconclusiveness of the police investigation.
When I taught Legal Ethics at Brooklyn Law School, I always put a similar hypothetical to my students – one which, in a Scott Peterson-type situation, raised the related issues of a lawyer’s legal duty to respect the attorney-client privilege and his moral duty to inform the police. Invariably, the students tried to accommodate both the legal constraints on disclosure and informing the police. Some suggested an anonymous telephone call to the authorities. Others would have "somehow" induced or forced their client into revealing the body’s location. Occasionally, a student would argue that if only a "future" crime were involved, it could be reported free of the attorney-client privilege. One person even went so far as to suggest resigning from the Bar, and then blowing the whistle. But through Socratic dialogue, it always became apparent by the end of each class that no disclosure ploy would succeed – and that the defense lawyer would be faced with a stark "either/or" choice of violating professional ethics by talking, or violating his personal moral code by remaining silent.
In the Peterson case, the defense lawyer would have only the bare words of Section 6068(e) to guide him because no California case has ever interpreted that section in this factual context.
A case in New York, however, has come close.
Robert F. Garrow, Jr. was accused of murder and was assigned two lawyers to represent him. During a privileged conversation in connection with that representation, Garrow admitted to three other murders, one committed in a nearby county. Belge, one of Garrow’s defense lawyers, followed up, found and inspected the body, and confirmed that it was the person Garrow had admitted killing.
Belge did not inform the police. But the story came out during Garrow’s murder trial when the defense attempted to use the three other murders their client had told them about to prove Garrow’s insanity. The public was outraged. An article in the Criminal Law Bulletin reported that: "Members of the public were shocked at the apparent callousness of these lawyers, whose conduct was seen as typifying the unhealthy lack of concern of most lawyers with the public interest and with simple decency." A judge would later write about the "hue and cry" in the news media.
Nor could the Bar Association discipline the two defense lawyers since, under the attorney-client privilege, they were prohibited from revealing anything they may have learned in an attorney-client conversation
Doubtless yielding to public pressure, the District Attorney in the county where Belge had found one of the other bodies refused to let Belge off the hook. After digging through the New York statutes, the D.A. came up with two sections of the Public Health Law: one requiring that the dead be afforded a decent burial, the other mandating that anyone knowing of a person’s death without a physician in attendance had to report it to the proper authorities. This was a stretch by the D.A, but a grand jury obligingly indicted Belge. Attorney Belge’s motion to dismiss the indictment on the ground that the attorney-client privilege protected him from non-disclosure was supported by the National Association of Criminal Defense Lawyers in a "friend-of-the-court" brief: "The attorney-client privilege will be effectively destroyed. No defendant will be able to freely discuss the facts of his case with his attorney. No attorney will be able to listen to those facts without being faced with the Hobson’s choice of violating the law or violating his professional code of ethics."
This is the classic rationale for the attorney-client privilege. The scales weigh more heavily in favor of a client’s disclosure to his lawyer than in favor of a lawyer’s disclosure of whatever confidences or secrets he’s been told. This "balancing" formed the core of the New York court’s decision: "Because the discovery of the body . . . would have presented ‘a significant link in a chain of evidence tending to establish his guilt’ . . . Garrow was constitutionally exempt from any statutory requirement to disclose the location of the body. And Attorney Belge, as Garrow’s attorney, was not only equally exempt, but under a positive stricture precluding such disclosure. Garrow, although constitutionally privileged against a requirement of compulsory disclosure, was free to make such a revelation if he chose to do so. Attorney Belge was affirmatively required to withhold disclosure."
It is worth noting that Belge was charged only with violations of a minor public health law. What if Belge – or Scott Peterson’s criminal defense lawyer, in our hypothetical case– had been charged with a more serious offence? According to the Belge case judge:
"In the case at bar we must weigh the importance of the general privilege of confidentiality in the performance of the defendant’s [Belge’s] duties as an attorney, against the inroads of such a privilege, on the fair administration of criminal justice as well as the heart tearing that went on in the victim’s family by reason of their uncertainty as to the whereabouts of [the victim]. In this type situation the Court must balance the rights of the individual against the right of society as a whole. There is no question but Attorney Belge’s failure to bring to the attention of the authorities the whereabouts of [the victim] when he first verified it, prevented bringing Garrow to the immediate bar of justice for this particular murder. This was in a sense, obstruction of justice. This duty, I am sure, loomed large in the mind of Attorney Belge. However, against this was the Fifth Amendment right of his client, Garrow, not to incriminate himself. If the Grand Jury had returned an indictment charging Mr. Belge with obstruction of justice under a proper statute, the work of this Court would have been much more difficult than it is." (Emphasis added).
In these words, we find instruction not only for Scott Peterson’s lawyer, but also for the District Attorney in Modesto, California. The judge in New York’s Belge case was making two important points. First, that just as murder defendant Garrow had a Fifth Amendment constitutional right not to incriminate himself through his lawyer, so, too, did Belge have a legal responsibility not to divulge information he had received in a privileged attorney-client conversation.
The judge’s second point, however, was not as comforting to Belge; nor would it be to Scott Peterson’s criminal defense lawyer:
"There must always be a conflict between the obstruction of the administration of criminal justice and the preservation of the right against self-incrimination which permeates the mind of the attorney as the alter ego of his client. But that is not the situation before this Court. We have the Fifth Amendment right, derived from the constitution, on the one hand, as against the trivia of a pseudo-criminal statute [the Public Health Law]on the other, which has seldom been brought into play. Clearly the latter is completely out of focus when placed alongside the client-attorney privilege." (Emphasis added).
In other words, if Belge had been charged with obstruction of justice, the outcome may have been different.
The same applies to Scott Peterson’s criminal defense lawyer. If – and it is still only an if – Peterson admits to his lawyer that he murdered his wife and discloses where and how he disposed of her body, the lawyer will have a hard choice to make. The California statute admonishes him "to maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client." He can remain silent, cloaked in his legal duty – whatever the cost to his personal moral values – and court a charge of obstruction of justice. Or – acting on what should be his personal moral values – he can reveal where Laci’s body was disposed of, in all probability violating his legal duty, and expose himself to professional discipline.
Truly, a Hobson’s choice – but one that comes with the often gray moral waters in which criminal defense lawyers navigate.