Is attorney-client privilege absolute? In late November, an appellate
court in California indicated that there are exceptions.
The case involved the issue of whether or not a defense attorney
should be permitted to testify against a former client when the former
client had threatened to kill or injure potential witnesses against him
and kill his former attorney. While most people consider the
attorney-client privilege all-encompassing, the law states that there is
no privilege "if the lawyer reasonably believes that disclosure of any
confidential communication is necessary to prevent the client from
committing a criminal act that the lawyer believes is likely to result in
death or substantial bodily harm."
In the trial against a Mr. Dang, his previous attorney, Mr. Smith,
testified that he understood the law to require him to inform the
district attorney's office of Mr. Dang's threats, and subsequently
testify against Mr. Dang.
Los Angeles Superior Court Judge Victor Person agreed, and a united
Appellate Court affirmed it. Mr. Dang's appellate attorney, Bob Horner,
is concerned that this decision will create distrust between a lawyer and
his client. According to Mr. Horner, "Now defendants are going to look at
you like you're working for the government or you're a snitch."
This is absolute nonsense. When people come into my office, they know
that what is said in the office will remain in the office. In my 20-plus
years of practicing criminal defense law, I have yet to hear a client
suggest that he was going to injure or kill a witness, nor have any
threats been made against me.
A lawyer can still honor his relationship with his client, yet do what
he needs to do to prevent a death.
In my other vocation, as a psychotherapist, the law similarly requires
me to alert a potential victim if my patient makes a serious threat of
imminent harm to an identifiable person. Under that circumstance, as a
therapist I am obligated to alert both the police department closest to
the proposed victim and the proposed victim himself.
Frankly, I find each obligation appropriate. Clients come into a
lawyer's office expecting that what they say will be kept private.
Clients come into a psychotherapist's office expecting what they say to
be kept private. People have to realize, however, that there are
limitations and that society has decided that while keeping one's
confidence is important, it comes in second when the alternative is
having someone harmed or killed. I don't see any reason to change either
standard, as, while the sanctity of the attorney-client and
psychotherapist-patient relationships are important, the protection of
human life is more so.
* CHARLES J. UNGER is a criminal defense attorney in the Glendale law
firm of Flanagan, Unger, Danis & Grover, and a psychotherapist at the
Foothill Centre for Personal and Family Development. He can be reached at
or at (818) 244-8694.
