Fruits of the Attorney-Client Privilege: Incriminating Evidence and Conflicting Duties

One of the most fundamental ethical duties of an attorney is that of maintaining secrecy concerning the confidences of his client. This duty of non-disclosure has been embodied in two of the Canons of Professional Ethics and has been recommended by the American Bar Association as one of the specifically ennumerated duties to be incorporated into the Oath of Admission to practice in all states and territories. In theory, the highly personal relationship between a lawyer and his client is, in many respects, like that of a confessor and his penitent, bound by the bond of silence. In practice, it is an undefined duty which causes many members of the legal profession untold mental anguish by reason of conflicting and overlapping duties. If the lawyer is faced with a close ethical question and resolves it in favor of his client, he quite often still feels that somehow he has violated a duty owed to the court or profession. This most often occurs where the lawyer feels bound to non-disclosure by reason of the attorney-client privilege but bothered by disclosure as possibly demanded in the duty of candor and fairness owed to the court and profession