I was reading a really interesting ethics opinion involving a civil attorney who was representing a daughter who was the executrix of her father’s estate.  The father had been shot and his spouse had been charged with murder.  The opinion did not make clear whether the spouse was a mother or a stepmother to the daughter.  In any event, the daughter had made clear to her attorney that she did not want to have any contact with her father’s murderer/spouse.

One day, the attorney was opening up his mail when he discovered a letter from the accused murderer.  In a portion of the letter, there were specific messages provided to be given to the daughter, the attorney’s client.  The letter contained potentially incriminating information, i.e., material that a prosecutor could use at trial to demonstrate that the spouse was guilty of murder.  The attorney suddenly found himself in the middle of an ethical quandary.  Could he release the information to law enforcement?  The attorney contacted the Pennsylvania Bar Association (PBA) seeking ethical guidance on how to handle the situation.  The ethics opinion made its way into the Pennsylvania Lawyer, the PBA’s magazine that goes out to its attorney-members.

First, the attorney was reminded that any information that he received as a result of his representation of the daughter was privileged information and attorney-client confidentiality attached to it.  Even though it was provided by a third party, the bottom line remained that it was obtained through the act of legal representation of the daughter.  Because the information was acquired in the course of the legal representation, the attorney had an ethical obligation to honor the attorney-client privilege.

Now, a client may grant permission to an attorney to disclose confidential information to a third party – but such a disclosure may only occur after the client gives “informed consent.”  What does that mean?  Well, the client has to understand that there is no way for the attorney to disclose the information unless or until the client permits such disclosure – and the ultimate decision to release the information rests with the client, not with the attorney.

The attorney’s inquiry to the PBA failed to disclose a number of pertinent factors: (1) whether the client (daughter) was aware of the letter and the potentially incriminating information contained therein; or (2) whether the client (daughter) had refused to authorize disclosure after the attorney had requested permission to release the letter to authorities.  Thus, the PBA notified the attorney of his ethical obligation to promptly notify his client (daughter) of the communication and to seek the client’s informed consent to permit the disclosure of the contents of the letter to law enforcement.

The PBA went further to advise the attorney that even if the client refused to provide consent to release the information to law enforcement, the attorney had a separate obligation to preserve the letter.  It could not be altered, destroyed or unlawfully concealed by the attorney or any other person.  Thus, the ethics opinion left the attorney with a difficult proposition.  If his client (daughter) refused to waive confidentiality, then the attorney would become the permanent caretaker of a letter containing incriminating information relative to a homicide.  The attorney could literally do nothing with it – he could not release it nor could he destroy it.

As I was reading the ethics opinion, I began to wonder whether the ethics opinion itself would provide a sufficient basis for the Commonwealth to seek a search warrant for the attorney’s records.  While the PBA ethics opinion did not name any of the parties, the fact pattern is sufficiently unique that law enforcement will be able to make reasonable assumptions as to the parties’ involved.  How many homicides are currently pending in the Commonwealth where the husband was killed by his wife and his daughter is serving as the executrix of the estate?  If the mother was incarcerated pending trial, law enforcement could check the records at the correctional facility to see if she sent any outgoing mail and to whom it was sent.  If they are able to verify that she sent a letter to the daughter’s attorney, the remaining facts present a pretty strong argument that the attorney is possessing evidence relevant to the homicide. 

If the Commonwealth did seek out a search warrant and obtained that letter, the wife (murderer) would have no objection whatsoever as she would lack any standing – she has no reasonable expectation to privacy in the attorney’s records.  Even if the search warrant was determined to violate the attorney-client privilege, the wife had no such attorney-client relationship – and it was not the sanctity of her confidential information that was violated.

Please submit any questions, concerns, or comments to Susquehanna County District Attorney’s Office, P.O. Box 218, Montrose, Pennsylvania 18801 or at our website www.SusquehannaCounty-DA.org or discuss this and all articles at http://dadesk.blogspot.com/.