Two Cases Challenge Attorney-Client Privilege

TWO highly publicized criminal cases last week collided with the time-honored principle that conversations between an individual and his lawyer are confidential. In Miami, defense lawyers for Gen. Manuel Noriega say they will ask that charges against the Panamanian strongman be dropped following revelations by the Cable News Network (CNN) that federal prison authorities had taped phone conversations between Mr. Noriega and his counsel. The defense says the taping violates General Noriega's right to counsel and thus precludes a fair trial.

CNN and Noriega's lawyers agreed Nov. 12 to take to the Supreme Court the issue of whether CNN can continue to broadcast excerpts from the Noriega tapes.

And in the second case, the Massachusetts Supreme Judicial Court (SJC) ruled Nov. 5 that the attorney for a deceased client accused of murdering his wife did not have to testify about a conversation with the client the day before the client committed suicide.

The Massachusetts case concerned the October 1989 murder of Carol DiMaiti Stuart. Mrs. Stuart, seven months pregnant, was found shot along with her husband, Charles, in their car. Mr. Stuart told police that a man had jumped into the car as he picked up his wife at the hospital and shot the couple after robbing them.

Stuart spoke with his lawyer, John Dawley, for two hours on Jan. 3, the day before he committed suicide. The same day, his brother Matthew told Boston police that Stuart's story was a hoax and part of an insurance-fraud scheme in which Matthew was involved. The implication was that Charles Stuart himself had killed his wife.

Suffolk County prosecutors investigating Mrs. Stuart's murder wanted Mr. Dawley to tell a grand jury what Charles Stuart said to him. Dawley refused, citing the attorney-client privilege.

Prosecutors argued before the SJC that since Stuart had died, he could no longer be harmed by information given to his lawyer. They said society's interest in learning the truth about Carol Stuart's murder outweighed the value promoted by the privilege.

The SJC disagreed, reaffirming the principle that the attorney-client privilege survives the client's death. ``A rule that would permit or require an attorney to disclose information given to him or her by a client in confidence, even though such disclosure might be limited to the period after the client's death, would in many instances, we fear, so deter the client from `telling all' as to seriously impair the attorney's ability to function effectively,'' the court wrote.

Writing for the majority, Justice Francis O'Connor also quoted a 1984 federal decision which held that because ``the attorney-client privilege may serve as a mechanism to frustrate the investigative or fact-finding process, it creates an inherent tension with society's need for full and complete disclosure of all relevant evidence during implementation of the judicial process.''

``But that is the price that society must pay for the availability of justice to every citizen,'' Justice O'Connor wrote.

Mark Pettit, a Boston University law professor, says the SJC ruling ``is not a big surprise.'' The attorney-client privilege, he says, goes back at least to the 1600s in English common law. In addition, ``there was a tradition in Roman law that a lawyer could not be a witness against his client.''

Legal scholars also say the privilege is also inherent in the Fourth Amendment to the Constitution, which guarantees against illegal search and seizure; the Fifth Amendment, which guarantees against self-incrimination; and the Sixth Amendment, which guarantees the right to a lawyer.

People often view the privilege as ``a choice between truth and the public interest on the one hand, and the privilege on the other,'' says Marty Rosenthal, managing attorney of the Harvard Law School Criminal Justice Institute. But ``our legal system is founded on a goal higher than truth - justice. Truth and truth-seeking are part of justice, but only part of it,'' he adds.

The courts do recognize some limitations on the attorney-client privilege. Geoffrey Hazard Jr., a Yale University law professor, notes that in certain cases involving wills, the lawyer of the deceased can testify as to his client's intentions when the will was drawn up.

In addition, when two business partners share an attorney, both have equal access to the lawyer's communications with the other, Mr. Hazard says. But most important, he says, attorney-client conversations in which the client seeks advice for criminal or fraudulent purposes are not privileged.

``The history of police-state techniques goes way back,'' Hazard says. ``The right to consult privately with a lawyer, even when you are guilty, is always one of the means by which you keep the intrusiveness of the government at an arm's length.''