Divorce Attorneys, Criminal Law and Ethical Violations

Occasionally, divorce attorneys are confronted with a particularly nasty ethical dilemma when two duties collide. First, divorce attorneys may not violate client confidences shared in the course of providing legal representation (the attorney-client privilege). Secondly, an attorney may not assist any client in the commission of a crime or violation of criminal law. Either of these ethical infractions, at a minimum, subject attorneys to disbarment. Question: What happens if a father tells his attorney that he will leave the country with his son and never return? Should the attorney inform law enforcement officers, in violation of the attorney-client privilege? Or, should the attorney do nothing and allow the crime of kidnapping to proceed?

How divorce attorneys resolve potential criminal law violations

The attorney-client privilege must remain inviolate. Therefore, the attorney cannot inform law enforcement or any one else about the confidential comment made by the client. The underlying rational is rather simple, in that all clients are served by preserving absolute confidence in confidentiality. If private discussions were subject to discovery, out of fear of an admission, the assistance of legal counsel would be rendered ineffective for all people in violation of the U.S. Constitution.

The attorney also cannot sit idly by knowing a crime is in progress. Therefore, the attorney must withdraw from representation to prevent assistance, by implication or omission, in a crime that may occur. In practice, all judges require a valid reason before allowing an attorney to withdraw as attorney of record while litigation is pending (normally, alternate counsel substitutes). If an attorney refuses to provide a valid reason, offers no substitute counsel, and insists on withdrawal, judges and opposing counsel usually assume the reason is protected by the criminal violation dilemma. With opposing counsel's presence at the hearing, mom would be the first to receive this message "Heads up, take precautions mom, something bad is unfolding as we speak. Sorry, don't know, but you should hold baby boy close and watch out."