Lawyers, Liars and Privileged Communications

If a client tells a lie to her/his lawyer, is that communication still privileged?

The answer is indisputably “yes,” and if a report in the Philadelphia Inquirer (  is accurate a former State Supreme Court Justice got that question wrong.

Render illustration of Attorney-Client Privilege Title On Legal Documents

What’s the background?  A lawyer disciplinary hearing was looking into whether

a former prosecutor improperly caused an attorney testifying before a grand jury to disclose privileged communications.  As described in a Pennsylvania Superior Court decision regarding the underlying case, “a significant number of the Commonwealth’s questions to [the testifying attorney] before the grand jury implicated potential confidential communications.”

Former Chief Justice Ronald Castille was called as an expert witness to support the accused attorney and claimed that if a client lies the attorney-client privilege does not apply.   As the Inquirer reported on August 2, 2018:

The former chief justice said Spanier and former administrators Tim Curley and Gary Schultz had stonewalled Baldwin when she asked them about Sandusky as she gathered information to respond to subpoenas to the university. Their lies stripped them of their right to invoke the attorney-client privilege to keep Baldwin silent, Castille told the board.

Castille testified that  “You can’t lie to your lawyer and expect that lawyer to be your counsel…It’s as simple as that.”

That’s not the law.    Sadly, whether due to fear, distrust, ignorance, embarrassment or other factors, people lie to their lawyers (and their physicians and their priests).  But those conversations are still 100% privileged.  A lawyer may only disclose client communications that involve plans to commit a crime in the future.

The expert testimony ignored how fundamental the need to protect communications is.

[T]he attorney-client privilege is intended to foster candid communications…so that counsel can provide legal advice based upon the most complete information possible from the client. The historical concern has been that, absent the…privilege, the client may be reluctant to fully disclose all the facts…if these facts may later be exposed to public scrutiny.

Who wrote those words?  Ronald Castille, when he was on the Court.

So it’s not “as simple as that.”  Attorney-client private communications are privileged – and lying doesn’t take that away.  A former Chief Justice should know that.