Where Does Advocacy End and Obstruction Begin?
| Date | 01 March 2000 |
| Pages | 68-82 |
| Published date | 01 March 2000 |
| DOI | https://doi.org/10.1108/eb025967 |
| Author | Harvey L. Silets,Daniel L. Overbey |
| Subject Matter | Accounting & finance |
Where Does Advocacy End and Obstruction Begin?
Harvey L. Silets and Daniel L. Overbey
Journal of Financial Crime — Vol. 8 No. 1 — Analysis
'Even in the very few instances where the accused
has intrusted his defender with a full confession of
his crime, we hold it to be clear that he may still be
lawfully defended. The guilt of which he may be
conscious, and which he may have so disclosed,
he has still a right to see distinctly proved upon
him by legal evidence . . . Human beings are
never to be run down like beasts of prey, without
respect to the laws of the
chase.'1
Our system of criminal justice requires that a lawyer
defend his2 client regardless of the client's guilt or
innocence.3 Unlike the prosecuting attorney, defence
counsel has no obligation to ascertain or present the
truth.4 According to Justice White, 'he need not
furnish any witnesses to the police, or reveal any
confidences of his client, or furnish any other infor-
mation to help the prosecution's case'.5 At least,
that is the way it used to be. Recent decisions cast ser-
ious doubt on the vitality of Justice White's words.
Simply put, the exceptions are devouring the
privilege. Worse yet, prosecutors have begun to
smell blood and circle the 'carcass' of the attorney-
client privilege to feast upon the previously unreach-
able morsels: the communications between attorney
and client and, ultimately, the attorney and client
themselves.
In the first section, we discuss the history and
development of the attorney-client privilege. The
second section looks at the crime-fraud exception
and its increased use. The third section discusses the
obstruction of justice statute and its use to prosecute
and convict attorneys alongside their clients. Finally,
in the last section we suggest tactics to protect the
attorney from investigation and prosecution while,
at the same time, providing the client with the
highest level of professional service.
THE ATTORNEY-CLIENT PRIVILEGE
The attorney-client privilege is the oldest of the
privileges for confidential communications known
to the common law.6 The history of this privilege
goes back to the reign of Elizabeth I, where the
privilege already appeared unquestioned.7 The early
theory of exclusion, however, was very different
from that which is currently accepted today.8 Until
the end of the 1700s, the privilege was an objective
one — a recognition of a consideration for the oath
and honour of the attorney.9 'The first duty of an
attorney,' it has been said, 'is to keep the secrets of
his clients.'10 As such, the privilege belonged solely
to the attorney. During the latter part of the 1700s,
this rationale was repudiated; the judicial search for
truth could not be subordinated by a voluntary
pledge. Likewise, breaking one's pledge of con-
fidentiality under force of law was not considered a
moral odium.
Contemporaneously with the demise of the
original privilege, a new theory arose in its place
and has survived to modern times. Unlike its
predecessor, this privilege belongs to the client. The
rationale for the privilege is that confidentiality
enhances the candour of attorney-client communi-
cations and, ultimately, the quality of legal services.
The rationale is founded on three assumptions.
First, modern law and legal processes are too
complex for persons untrained in the law to under-
stand readily, thus generating a need for clients to
consult lawyers. Secondly, the lawyer needs complete
and candid disclosure from his client in order to
counsel and advise his client properly. Likewise, the
client needs to be able to receive this counsel and
advice from the attorney. The third assumption is
that clients would be unwilling to disclose
personal, embarrassing or unpleasant facts unless
they could be assured that neither they nor their
lawyers could later be called to testify to the
communications.11
In a society as complicated in structure as ours and
governed by laws as complex and detailed as those
imposed upon us, expert legal advice is essential. To
the furnishing of such advice the fullest freedom
and honesty of communication of pertinent facts is
a prerequisite. To induce clients to make such com-
munications, the privilege to prevent their later
disclosure is said by courts and commentators to be
a necessity. The social good derived from the
proper performance of the functions of lawyers
acting for their clients is believed to outweigh the
harm that may come from the suppression of the
evidence in specific
cases.12
Journal of Financial Crime
Vol 8. No
1,2000.
pp 68-82
© Henry Stewart Publications
ISSN 0969-6453
Page 68
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