Tom Stilp JD, MBA/MM, LLM, MSC
Drew Peterson, the former officer convicted of killing his third wife, asked a judge to silence his former attorney, Joel Brodsky. The judge granted the motion.
Brodsky represented Peterson in the murder trial of his third wife, Kathleen Savio. The case was reopened after Peterson’s fourth wife, Stacy, disappeared in 2007. She’s never been found and police suspect she was also murdered by Peterson.
Attorney Brodsky told reporters he was going to disclose what happened to Peterson’s third and fourth wives.
The judge said never in his 40 years in law has he seen an attorney threaten to betray his client’s trust in such a bold way.
“This may be the most vile-crime in the U.S. but [defendants] still have a right to speak in confidence with their attorney,” the judge said in court.
Because Peterson is accusing his former attorney of ineffective assistance of counsel, Brodsky now argues he has the right to defend himself by breaking attorney-client privilege.
The judge seemed to agree, but said the case is not yet at that stage: “If Mr. Peterson were to testify that may absolve Mr. Brodsky of any obligation he has to keep those conversations privileged” — In other words, the former client, Peterson, will waive the privilege by testifying.
But what is the attorney-client privilege? Attorney-client privilege refers to a legal privilege that keeps communications between an attorney and his or her client secret.
The most famous definition of the attorney-client privilege is as follows: “(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his [or her] capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his [or her] instance permanently protected (7) from disclosure by [the client] or by the legal adviser, (8) except the protection be waived.”
8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2292, at 554 (McNaughton 1961 & Supp. 1991)
If Drew Peterson testifies, and that waives attorney-client privilege, are there other exceptions? Yes. For example, a lawyer may reveal confidential client information to prevent “reasonably certain death or substantial bodily harm.” An attorney may also make a disclosure to comply with the law or a court order, or prevent the attorney’s services from being used to further criminal activity.
For most people, the disclosure of their private, attorney-client information can substantially harm their negotiating position or their ability to receive a fair trial. Secrets should go with the attorney to the grave to avoid ending up costing a great deal of money, freedom, and reputation for a client.