Attorney-client privilege is one of the necessary flaws in the American justice system. On the one hand, it is fundamental to an effective defense for a lawyer to know the facts of the case. No client with common sense would disclose information about his or her guilt to a lawyer if the lawyer was required to report him or her.
Leo Frank, a Jewish man, who owned a pencil factory in the segregationist State of Georgia was the unsuspecting victim of the flaw of attorney-client privilege. In 1913, Frank was accused of murdering Mary Phagan, a thirteen year old Christian girl who worked in his pencil factory. Upon his conviction, which hinged on the testimony of a Black man by the name of Jim Conley-a rare occurrence in the segregated south in 1913 (Blacks were not allowed to testify in court), Frank was sentenced to hang. Frank’s writ of certiorari was denied, but the then Governor of Georgia, John Slaton, became convinced of Frank’s innocence, and commuted his sentence. A mob broke into Frank’s prison cell, wrested him out, and hanged him anyway.
Sixty-nine years after the trial, an 83 year old White man, Alonzo Mann, came forward and testified to having seen Conley, the key witness in the case, drag the girl down the stairs to the factory’s basement, the day of the murder. Frank was awarded a post-humus pardon in 1986 (Telushkin, 454). Unfortunately, a post humus pardon does little to bring an innocent man back from the grave. There is no guarantee that Frank’s life would have been saved without the attorney-client privilege; the segregated south was as bad for the Jews as it was for the Blacks. None-the-less, Frank was as much a victim of a flaw in the system as he was the victim of anti-Semitism.
It was later discovered that Conley’s lawyer had known that Conley did it the whole time, because Conley confessed to him. Although this information could have freed Frank, the information was withheld based on attorney-client privilege, and Frank was wrongfully convicted.
There is a lot to be learned from this case: Conley’s attorney knew that an innocent man, Leo Frank, was sentenced to death, but withheld information from the court that could have saved the man’s life, on the grounds of attorney-client privilege. It is also an example of how the senseless hatred of a group of people can blind someone into believing the worse about a person based on preconceived notions.
Attorney-client privilege is one of the necessary flaws in the American justice system. On the one hand, it is fundamental to an effective defense for a lawyer to know the facts of the case. No client with common sense would disclose information about his or her guilt to a lawyer if the lawyer was required to report him or her. Conley would have never admitted that Frank did not kill the girl. For this reason, the attorney-client privilege is one of the most closely guarded rights a person has.
For example: Say a person really didn’t commit a crime, but something he or she did that day would make it look as though the person was guilty. If the attorney did not know what the person did, and the prosecutor found out, the attorney would be blind-sided and have no defense for his or her client. Many innocent people would be convicted of crimes.
On the other hand, as in the Frank case, when the attorney knows that his or her client committed a crime, he or she still has the responsibility of protecting his or her client, even at the expense of someone else’s freedom. Lawyers are required to keep the attorney-client privilege, even after the client is deceased-unless otherwise permitted by the client. This too can lead to innocent people being wrongfully convicted. Simply put, it is a diabolical snag in the system-designed to protect one, but at the expense of another.
There is an exception to the attorney-client privilege. Attorneys, as well as doctors, psychologists et al, are required to report crimes that they have reason to believe are going to happen in the future. Conley’s attorney knew that Conley, not Frank, committed a crime that had already happened. However, if Conley had gone to his attorney and told him that he intended to kill the girl before the crime took place, the attorney-client privilege would have no longer been a factor. Conley’s attorney would have then been required to report the future crime to the proper authorities.
This brings into question the ethics of the Frank case. Conley’s attorney knew that Frank was innocent, but was about to be hanged. In the practical sense of the word, he had prior knowledge that a crime was about to take place. Logic then follows that he should have been required to report the future crime to the court; but this is an error of judgment. The law does not view the conviction of an innocent man as a crime, as long as he has his fair day in court-which in the Frank case, he did not, and not simply because of the failure to provide pertinent information to the court. The law takes the position that a person has the opportunity to defend him or herself by invoking his or her rights, and the failure of the defendant to provide a good defense does not make criminals out of the court.
There were many discrepancies in the Frank case-not just the information that was withheld on the grounds of attorney-client privilege. Atlanta courts in 1913 did not allow Black people to testify, yet in the Frank case they did. When Frank appealed the case, his writ of certiorari was denied-even though he had been sentenced to hang, and could prove that there were errors of law during his case. All facts considered, Frank was convicted of being a successful Jew, not of killing a 13 year old girl.
1) Introduction to Law for Paralegals, Hillsborough Community College 2010,
2) Business Law, Jeffrey Beatty and Susan Samuelson, Hillsborough Community College 2010,
3) Criminal Evidence Principle Cases 6d, Thomas Gardner and Terry Anderson, Thomas Wadsworth 2007,
4) Jewish Literacy, Rabbi Joespeh Telushkin