This is an interesting opinion. Two brothers run an auto body shop. Their lawyer (who also happens to be their sister) contacts police to tell them the brothers are involved stealing cars. Based on the tip, police obtain and execute a search warrant, and the brothers, and the wife of one of them, are charged. They move to suppress evidence from the search on the ground that the warrant was obtained in violation of the privilege. The court denies the motion because (i) the right to counsel had not attached (Moran v. Burbine) and thus was not denied; (ii) the privilege is an evidentiary rule, not a substantive one; (iii) the government conduct was not outrageous because the government did not induce the breach in the relationship.
(A couple of qualifications: The wife, Donna, pleads guilty. One brother, Edward, is a writ petitioner from denial of the motion, so his guilt is not yet determined. The status of the other brother, Alejandro, is not clear from this opinion, so I assume his guilt is not yet determined, either. Also, the court of appeals notionally does not find that the sister is the informant, or that she conveyed privileged information to the police, though the substance of the opinion is of interest/worth writing only on those assumptions.)
Doctrinally, this result seems right to me. The privilege presumably would exclude the sister's testimony at trial, but that does not mean the sister's statements do not provide probable cause to search for admissible evidence. The sister violated private obligations running to her brothers as clients, for which they would have a remedy if innocent (though the sole cause rule might bar such a suit here if they are found guilty), but her violation does not imply a violation by the government. (The court was clear that things would be different if the government induced the breach, but it didn't.)
Here's an analogy on the private duty question. Suppose two persons sharing an apartment agreed never to consent to a search, and one did, in violation of the agreement. Suppose further that person informed the police of the contractual obligation up front, so that they knew about it, as they would know about the default fiduciary obligations running from lawyer to client. Should breach of the contractual obligation result in suppression of evidence? As fiduciary obligations are conceptually contractual gap-fillers, the analogy is reasonably apt, though not perfect.
Normatively, I suppose the case turns on whether one thinks society is better off if lawyers sit on knowledge of conduct they believe to be illegal, particularly when (as seems to be the case in this case) that conduct is continuing. (If the conduct were facilitated by communications with the lawyer, of course, the privilege would not apply in the first place, so I here refer to pure knowledge without assistance).
One often hears the privilege justified on the grounds that it gives clients the security needed to seek advice in order to follow the law. But what if the client persists in not following the law? Does the rationale then evaporate, so that this sort of disclosure is allowed on the ground that it produces net social gains? A rule allowing a lawyer to disclose only if a client refused to stop unlawful conduct would seem to preserve the breathing space needed for the hypothetical law-following client, while giving the lawyer a stick to back up advice that clients stop breaking the law.
I doubt the losses to the brothers (in terms of breach of duties) are greater than the gains to society from stopping their alleged unlawful activities (assuming the allegations to be true). Spread across all cases one would expect clients willing to follow the law to suffer no losses, while persistent law-breakers would be worse off, which seems the socially desirable result.
My colleague Shaun Martin disagrees with the result.
Thoughts?
DM