One of the most written-about criminal cases in U.S. history, the murder trial and conviction of Jeffrey MacDonald for the murder of his pregnant wife and two children, is in the news again. Salon's "Maybe Jeffrey MacDonald was innocent explains why. The latest edition of New York Law Journal uses the case to launch a piece on the "ethics nightmare" scenarios concerning the survival of the attorney-client privilege after the client's death. The authors' conclusion:Clearly, a real quandary awaits an attorney possessing evidence that 1) might prove exceptionally helpful to a criminal defendant and 2) can no longer directly prejudice a now-deceased client. On the one hand, the attorney may be reluctant to allow an injustice to occur by sitting silently on evidence that could help exonerate an innocent. On the other, the attorney will not wish to appear too cavalier with (even) a dead client's confidences. Taken together, the amalgam of MacDonald, Vespucci, Morales, and Macumber suggests that the attorney may wish to postpone making his disclosure until a bar opinion, and perhaps ultimately a court, have sanctioned it: Such a decision is too weighty for an attorney to make relying exclusively on his gut.
And what if the client is a dead corporation? Michigan's own (Hon.) Michael J. Riordan has the answer in "The Attorney-Client Privilege & The "Posthumous" Corporation--Should The Privilege Apply?" (PDF).
