Criminal Procedure
In re Silverman, 36 F.3d 247 (2d Cir. 1994)
Study notes for In re Silverman: professor notes, cold call prep, exam angles, and memory aids.
The attorney-client privilege does not protect communications made with the intention of committing or concealing a crime.
In re Silverman presents a crucial examination of the boundaries of the attorney-client privilege and its limitations in the context of criminal conduct. The Second Circuit emphasized that the privilege does not extend to communications made with the intent to further or conceal criminal activity. Professors might stress the implications of this ruling on legal ethics and the responsibilities of attorneys when they are aware of their clients' potential wrongdoing.
Students should also pay attention to the court's rationale in balancing the need for confidentiality in the attorney-client relationship against society's interest in preventing crime. The case illustrates how courts navigate the tension between protecting fundamental rights and holding individuals accountable for criminal actions.
C3: Crime, Cover-up, Communications - Attorney-client privilege does not protect communications intending to commit or conceal crime.
| Case | Distinction |
|---|---|
| Nix v. Whiteside | Nix involved issues of a lawyer's duty to avoid presenting false testimony, which differs from the privilege's application in facilitating a crime. |
| Upjohn Co. v. United States | In Upjohn, the privilege was affirmed due to the lack of criminal intent in the communications, contrasting with Silverman's focus on intent to conceal criminal activity. |
| United States v. Zolin | Zolin deals with the privilege in the context of grand jury investigations but focuses on balancing factors rather than the clear criminal intent present in Silverman. |
Limiting the scope of attorney-client privilege to prevent illegal conduct ensures that the legal profession does not become a shield for criminal activity, promoting the rule of law.
Restricting the privilege can undermine the fundamental trust in the attorney-client relationship, potentially discouraging clients from being open and honest about their legal issues.
This case is frequently used in exams to highlight the exceptions to attorney-client privilege, as well as the ethical duties of attorneys in criminal matters. Be prepared to analyze fact patterns involving potential criminal conduct and the scope of privilege.