We need to have a discussion about Privilege.
No, not that privilege. I mean we can certainly have a conversation about it, but in this case, I’m referring to another type of privilege: Attorney-Client Privilege. Surely most people have heard about this, whether they’ve watched a legal drama before or something or other, but for clarity sake and to dispel any myths about what it is, I’ll explain it, but first I’ll tell you the reason why I’m writing this opinion piece on a seemingly random topic.
About two months ago, R. Kelly, the R&B singer and songwriter, was arrested on ten counts of aggravated criminal sexual abuse, with at least three of the four victims being minors at the time of the alleged assaults. This was certainly not the first time the singer had been accused of sexual assault and other related offences. In fact, as this article is being written, his Wikipedia page has an entire section devoted to “Sex Scandals and Allegations” which recount the numerous accusations and indictments stemming from his alleged sexual abuse, including child pornography charges in 2002. This becomes pertinent because Kelly was brought to trial over those charges and was represented by an attorney named Ed Genson.
About a month and a half, an article was published in the Chicago Sun-Times, wherein the writer interviewed Attorney Genson about his time representing Kelly. When asked about the innocence of his client, Attorney Genson stated that he was “guilty as hell,” as well as stating that he “had [Kelly] get libido-killing shots” so he wouldn’t be arrested for any other inappropriate and illegal conduct. Here is where I note that Attorney Genson has terminal cancer, and seems to be doing this to get it off his conscience. This doesn’t affect the fact that his actions here were unethical, but it may add a bit of personal context as to why he would chose to do this.
So, Attorney-Client Privilege basically means that, with exceptions, whatever you tell your lawyer is private. Lawyers, with some exceptions, are not permitted to talk about what their told them. It’s a basic foundation of our American Justice system that is supposed to keep trust between a client and their attorney. While I’m not going to claim that some statement by some attorney is going to single-handedly destroy the American Judicial system, I am going to argue that this type of behavior should not be celebrated at all. While it may seem satisfying to have your opinions on the innocence of R. Kelly validated, it’s important to remember that the system as a whole only works if the most basic building blocks function as they should. And every time some lawyer pulls a stunt like this, it picks away at the fragile trust between a lawyer and their client. No doubt, given the high-profile nature of this case, this could cause some clients to not be fully honest with their lawyers, for fear that they might one-day decide to talk about exactly what their clients told them in confidence.
Additionally, the writer of the Chicago-Sun piece said that he “wondered if this statement might violate attorney/client privilege. But 1) Genson volunteered the information; 2) Kelly is no longer his client; and 3) attorney/client privilege doesn’t hold if a client is engaged in ongoing criminality or is perjuring himself. ” As you can tell by my tone of voice when talking about this writer, he’s not correct on literally any one of his reasons for publishing this.
The Illinois State Bar Association’s Rules of Professional Conduct are the rules that attorneys in Illinois must abide by. The rules regarding Attorney-Client Privilege are virtually the same from state-to-state, but because Illinois’s Rules are the rules that Illinois Attorneys are bound by, I’ll only be using their Rules when examining Attorney Genson’s conduct.
Rules 1.6: Confidentiality of Information, is the rule most pertinent to this scenario. First, the facts: Attorney Genson represented Kelly in a criminal matter where he was declared not guilty at trial. Attorney Genson no longer represents Kelly. He disclosed to a reporter that Kelly was “guilty as hell,” as well as disclosing his client’s medical information relating to the case.
The Rule states that “(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) or required by paragraph (c).”
Needless to say, there was literally no ethical or legal reason for Attorney Genson to disclose this information. I don’t have enough space to go through each exception to the Privilege rule, but, essentially, a lawyer may break privilege to prevent the client from committing a crime “to prevent reasonably certain death or substantial bodily harm,” and to defend themselves in a malpractice lawsuit.
So, we’ve established that what he did was unethical, according to the Rules. And I hope I’ve made my case about how we shouldn’t celebrate this kind of stuff. Our justice system is by no means perfect, but the answer to fixing it does not lie in tearing away the basic principles and supports on which it stands. I’m trying not to be dramatic: like I admitted before, this one event will likely do very little to alter the trust that Americans have in their lawyers. But I’m warning about the dangers of creating a culture where this type of populist-style extrajudicial justice is applauded. The desire to be validated in one’s judgement about a person is completely natural. It certainly doesn’t seem fair that this man got away with all that he did, especially now that we know he was “guilty as hell”. But the arena of public opinion is not kind to anyone and it would do us all best to avoid it. This is just one example of the many “bricks” that our society is built upon. As we seek to change and reform our judicial institutions, it’s important to remember that the way we go about it matters.
