Must attorney allow an innocent man to be convicted to maintain client confidentiality?

January 30, 2013 By Charles F. Otey, Esq Brooklyn Daily Eagle
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Should an attorney who knows that her client committed a murder for which a wrongly convicted man spends 26 years in jail break her silence in abrogation of her attorney-client privilege?

To prevent an apparent ‘miscarriage of justice’ should she reveal her client’s guilt? If so, when? At the sentencing? After all appeals have been exhausted?

These are just some of the provocative issues a Kings County American Inn of Court panel, led by Judge Miriam Cyrulnik and Inn President Marc Dittenhoefer, demonstrated when Inn members gathered for their CLE-accredited session held at Brooklyn Bar Headquarters, 123 Remsen St.

Participation — which included a delicious buffet arranged by Inn Executive Director Jeff Feldman — was limited to members and offered two hours of Continuing Legal Education, one in practice the other in ethics.

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As to the aforementioned attorney’s ethical dilemma, the answer that most barristers would agree on is that the attorney-client privilege is a lynchpin of our system of justice in that no one should be forced to give testimony against herself a result that inevitably obtains when an attorney disregards its well-defined strictures. In this instance, the client actually confessed his guilt to his attorney.

While it’s apparent that the privilege may be disregarded when its observance would certainly bring bodily injury to another person, “Doesn’t 26 years in jail constitute ‘bodily harm?” someone asked. Apparently incarceration, alone, does not meet the privilege threshold.

But questions such as these stirred many in the audience to participate including Justices Ellen Spodek, Arthur Schack, Marsha Steinhardt, Karen Rothenberg, Acting Supreme Court Justice Robin Garson, Judge ShawnDya Luisa Simpson and retired Appellate Division Justice Gabriel Krausman, retired justices Gerard Rosenberg, Martin Schneier – who a NYLJ advertisement proudly proclaimed had achieved a “100 percent rate in mediations in 2011 and 2012” — and former Inn President Emeritus Justice Edward Rappaport.

Offering insightful views as well were past BBA President Andrea Bonina,Theresa Ciccotto Steve Finkelstein, Helene Blank, Bonnie Kurtz, Victoria Lombardi, Mike Good, Steve Goolnick, Angelique Moreno and Brian Kieran, among others.

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