An Attorney Tests the Limits of Lawyer-Client Privilege by Shielding a Hit-and-Run Driver
09/19/1988 at 01:00 AM EDT
Saturday, March 8, 1986—a cool, cloudy night in Florida's Palm Beach, and traffic on South Ocean Boulevard, the dimly lit, two-lane highway that runs the length of the island, is brisk. Heading south in a red Mustang are Mark Edward Baltes, a 28-year-old electrician, and his fiancée, Beth Miller. They had begun their evening pleasantly enough, sipping champagne at a cocktail party before stopping off at an Italian restaurant on glittery Worth Avenue, where they shared a few more bottles of bubbly with friends. But alcohol has soured their tempers, and by midnight the couple are engaged in a terrible row.
Miller turns into a random driveway, and Baltes, in a fit of anger, gets out, stubbornly insisting that he'll walk home. The Mustang pulls away. In a drunken stupor, Baltes staggers along the boulevard for several minutes before a light-colored Buick Riviera hits him head-on. His shoes, watch and suit vest are knocked off by the impact, which kills him instantly. And though the Buick drags Baltes' mangled body for some 60 feet, the driver never bothers to slow down. "It just kept going," said Mildred Resnick, who witnessed the tragedy from her front window. "It wasn't speeding...but it just didn't make any attempt to stop."
Lamentably, such accidents are far from rare, and Baltes' death went down in police blotters as a routine hit-and-run. But the case took a bizarre turn just a day later when a local lawyer, calling on behalf of a colleague representing the hit-and-run driver, contacted the state attorney's office in hopes of striking a plea bargain. If the state would permit a no-contest plea and guarantee no greater punishment than probation for the offense, proposed the lawyer, the driver would surrender immediately. Outraged by the brazenness of the offer and confident they had evidence aplenty to find and charge the driver, state officials did not pause before issuing a terse response: no deal.
Two and a half years later, the Baltes' case remains maddeningly unresolved. Countless interviews, laboratory analyses and a host of leads have provided no suspect. The driver has refused to come forward despite subsequent offers of immunity. And the driver's attorney, Barry Krischer, has staunchly refused to name his client. The legal stalemate has rankled Baltes' bereaved survivors, local law enforcement agencies involved in the case and most of the Palm Beach community. It may also prompt a landmark decision in U.S. case law: Baltes' parents have filed a $6 million civil suit against the unknown driver in a bid to force Krischer to identify his client. Within a month, a Palm Beach circuit court judge is expected to rule on the case in a decision that could uphold—or erode—the right of attorneys and their clients not to reveal confidential communications.
For his part, Krischer, 44, believes he is on solid legal ground. The specifics of the Baltes accident and the young man's "regrettable" death are moot points, he insists; what's at stake is the protection of a citizen's right to counsel and confidentiality. "It's a condition of our employment not to reveal the client's identity if that's his request," he says. "I know what I'm doing is right." Much of the legal community seems to concur: Law professors testifying during hearings on the case last April unanimously supported Krischer, and one judge disqualified himself because of his apparent sympathy for Krischer's position. The National Association of Criminal Defense Lawyers has appointed a former president, Bruce Lyons, to work on the Krischer case. "I'm not concerned about the individuals but the principle, " says Lyons. If Krischer is forced to talk, "no one will ever feel free to bare his soul to his attorney."
One of the few legal dissenters is Joseph Farish, the flamboyant West Palm Beach attorney who represented Roxanne Pulitzer in her divorce proceedings. Baltes' parents retained him last year when state investigations into their son's death had reached a virtual dead end. The law must follow morals first and legal ethics second, Farish argues. "What's happened in this case is morally wrong, and I think it's legally wrong, too." According to Farish's reasoning, Krischer could become a criminal accomplice by shielding his client.
Mildred and Joseph Baltes say their lawsuit is motivated not by malice or greed, but by the desire to unravel the mystery of their son's death and get on with their lives. They have spent $50,000 on private investigators' fees and assorted expenses, a hefty sum for a couple, now divorced, who get by on a small businessman's and a waitress's earnings. And there has been the emotional agony of not knowing why the driver didn't stop, why official investigations failed, why "something so simple wasn't solved long ago," says Mildred. She believes the driver was stoned or drunk and accuses both police and the state of botching the case. Joe suspects that people who have information have not come forward. "Too many leads and too many informants' memories just dried up," he says bitterly. "There's someone with a lot of power and money that can just close mouths in this case."
The painful reality for the Balteses is that mouths will likely stay closed for a good while yet, if not permanently. Even if the judge decides in their favor, the ruling will almost certainly be tied up for years in appeals and counter-appeals. "I always hold out the hope that this person's conscience will bring them forward," says Mildred. Hope may be all she has.
—By Paula Chin, with Meg Grant in Palm Beach