Attorney-client privilege is one of the oldest rights in our legal system, and one of the most important. The whole notion of a fair trial is at jeopardy if defendants can’t trust their lawyers to keep what they say in strictest confidence.
There are only two exceptions to privilege in Rhode Island – to prevent “imminent death or substantial bodily harm” or to “establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.” In neither case is disclosure mandatory.
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On Jan. 4, the R.I. Supreme Court will consider two proposed new exceptions, to prevent the client from committing a crime or fraud “that is reasonably certain to result in substantial injury to the financial interests or property of another” and in furtherance of which the client has used the lawyer’s services, or to “mitigate or rectify” such substantial injury.
The American Bar Association and a state committee formed by Chief Justice Frank Williams endorse the change, but the Rhode Island Bar Association denounces it. We agree with the state bar.
As devastating as financial harm from a crime can be – remember Enron – it can’t outweigh the potential harm from chipping away at a fundamental civil safeguard. Rights serve a vital purpose and allow us to claim justifiably to be the land of the free.
One other proposed modification, however, does make sense to us. Alan S. Flink, former head of the R.I. bar’s House of Delegates, would like to make it mandatory to break privilege to prevent death or serious bodily harm. We believe protecting human life is that important.
