Does "furtherance of a crime" exception to attorney–client privilege apply if the attorney is unsure?

Question

If a lawyer suspects that a client shall commit an imminent crime, then attorney-client privilege ceases and communication is not privileged. But what if the lawyer is unsure whether the crime is about be committed? For example, consider this hypothetical:

A client informs their lawyer after killing someone through torture (for example, by burying them alive), and also of the location of the killing.

If the victim has already died, then the crime is murder; so presumably this communication is privileged.
However, if the lawyer doesn't know definitely that the person has died (attempted murder),
then furtherance of that crime may be prevented.

Does the lawyer have a duty to report the information to the police?
Are there any legal implications if the lawyer is wrong?

Answer 1

(US Answer) Under the Model Rules of Professional Conduct, "A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary... to prevent reasonably certain death or substantial bodily harm..." Most states have incorporated the MRPC into their own state legal ethics codes.

Therefore, as to whether a lawyer may tell the police, it comes down to whether death is reasonably certain, and whether the lawyer reasonably believes disclosure is necessary to prevent the death. In the case of a person buried alive, death is reasonably certain, and whether the disclosure is reasonable will be based on what the lawyer knows and doesn't know - was it a month ago? ten minutes ago? etc. If the lawyer believes it is too late, he is obligated to stay quiet. If he believes there is a chance of saving the life, and that belief is later judged reasonable if he is investigated, there will be no penalty for him if he discloses.

There is no duty for a lawyer to report a crime committed by a non-lawyer/non-judge, so non-disclosure should have no negative ramifications legally.

Disclosure found to be unreasonable could be punished by private censure, public censure, suspension of license, or even disbarment, depending on the view of the bar association's ethics investigators.

Answer 2

I found this excellent write up on the limitations of attorney-client privilege

The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client."
_{*Source: United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950)}

So based on this there could be several things that would apply that would limit the attorney-client privilege.

If the attorney had never represented the "client" and had not entered into some sort of an agreement where the client could reasonable expect that the privilege would be granted. Something to the effect of:

client:I commited a crime and would like you to represent me.
Lawyer: Ok tell me what happened

Here the client clearly indicated he was looking for representation and the attorney indicated he understood and asked for the details. In this case, based on the criteria set out in USvUSMC(quoted above) the privilege would exist.

Now if the client indicates that he left the victim to die, then yes the privelege could be breached due to:

Crime or Fraud Exception. If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud or the post-commission concealment of the crime or fraud, then the communication is not privileged. If, however, the client has completed a crime or fraud and then seeks the advice of legal counsel, such communications are privileged unless the client considers covering up the crime or fraud.

The attorney has reasonable belief that a crime is still being committed and allowing the victim to die. In fact if the body had not been found then it could be argued that the failure to report a death crime is ongoing and could breach privilege.

Now if the client barged in, confessed the crime, then asked if the attorney would represent him, the attorney could reasonably state that no privilege exists, and could share the confession with the authorities.