ethics question
RichD
Let's say a client confides to his lawyer, during a
case, regarding some aspect of the case which
implicates him in some other crime. He is anxious
to deflect the prosecution's attention away from this
fact. Presumably, the attorney is bound to silence,
and will co-operate.
For instance, he might face a theft charge. During
the arrest, the police found in his possession an
employee badge (for a locale other than the place
of arrest), whose validity they did not question.
However, the badge is a forgery (perhaps he uses
it to gain access to company premises). Naturally,
he wants to avoid any focus on this item, but he
confides in his lawyer.
ok, that's pretty simple... but now, imagine the
case is resolved, then much time later, the same
person is involved in another case, where that
attorney has no interest. He reads about it in the
newspaper. He sees that the same employee
badge is again referenced, and the case hinges
on the issue of its validity. Is he obliged to speak
publicly? Does the confidentiality thing still apply?
Suppose a miscarriage of justice will occur, if the
badge is wrongly judged to be valid. Then what?
--
Rich
Naughtius
> I am curious about the extent of attorney-client confidentiality.
>
> Let's say a client confides to his lawyer, during a
> case, regarding some aspect of the case which
> implicates him in some other crime. He is anxious
> to deflect the prosecution's attention away from this
> fact. Presumably, the attorney is bound to silence,
> and will co-operate.
>
> For instance, he might face a theft charge. During
> the arrest, the police found in his possession an
> employee badge (for a locale other than the place
> of arrest), whose validity they did not question.
> However, the badge is a forgery (perhaps he uses
> it to gain access to company premises). Naturally,
> he wants to avoid any focus on this item, but he
> confides in his lawyer.
>
> ok, that's pretty simple... but now, imagine the
> case is resolved, then much time later, the same
> person is involved in another case, where that
> attorney has no interest. He reads about it in the
> newspaper. He sees that the same employee
> badge is again referenced, and the case hinges
> on the issue of its validity. Is he obliged to speak
> publicly?
No.
> Does the confidentiality thing still apply?
Yes.
>
> Suppose a miscarriage of justice will occur, if the
> badge is wrongly judged to be valid. Then what?
Sorry, At This Point, You're OUT Of Suppositions...
> Rich
Naughtius "Sorry, Only Two To A Customer" Maximus
McGyver
news:a27a0c81-e4c8-477c...@a31g2000yqn.googlegroups.com...
Your question is unclear on a critical point. You said: "the badge is a
forgery (perhaps he uses
> it to gain access to company premises). Naturally, he wants to avoid any
> focus on this item, but he confides in his lawyer."
If "confides" means that he revealed an intention to commit a future crime
regarding access to company premises (trespassing, theft, whatever), the
attorney would be obligated to reveal the statement to the cops.
But if "confides" means that he revealed a past crime (forgery) and stated
no intent to commit a future crime, the attorney would be obligated to keep
the confidential communication confidential.
This answer must not be relied on as legal advice for the reasons posted
here: http://mcgyverdisclaimer.blogspot.com . And I am not your attorney.
McGyver
RichD
> > Let's say a client confides to his lawyer, during a
> > case, regarding some aspect of the case which
> > implicates him in some other crime. He is anxious
> > to deflect the prosecution's attention away from this
> > fact. Presumably, the attorney is bound to silence,
> > and will co-operate.
>
> > For instance, he might face a theft charge. During
> > the arrest, the police found in his possession an
> > employee badge (for a locale other than the place
> > of arrest), whose validity they did not question.
> > However, the badge is a forgery (perhaps he uses
> > it to gain access to company premises). Naturally,
> > he wants to avoid any focus on this item, but he
> > confides in his lawyer.
>
> > case is resolved, then much time later, the same
> > person is involved in another case, where that
> > attorney has no interest. He reads about it in the
> > newspaper. He sees that the same employee
> > badge is again referenced, and the case hinges
> > on the issue of its validity. Is he obliged to speak
> > publicly? Does the confidentiality thing still apply?
>
> > Suppose a miscarriage of justice will occur, if the
> > badge is wrongly judged to be valid. Then what?
>
> Your question is unclear on a critical point. You said:
> "the badge is a forgery (perhaps he uses it to gain
> access to company premises). Naturally, he wants to
> avoid any focus on this item, but he confides in his lawyer."
>
> If "confides" means that he revealed an intention to commit
> the attorney would be obligated to reveal the statement to the cops.
>
> But if "confides" means that he revealed a past crime
> (forgery) and stated no intent to commit a future crime, the
> attorney would be obligated to keep
> the confidential communication confidential.
He states no such future intent.
However, at a later date, a criminal case does
occur, involving a possible misuse of the badge,
which the attorney learns of through the news,
wherein he has material, but confidential,
information. What options does have then?
To be more concrete, suppose it's a phony
college ID. He is refused medical treatment at
the campus infirmary. He sues, claiming employee
rights... but he is not an employee. (obviously
risky for him, but let's say he likes to live dangerously)
The injustice is financial loss for the college,
if he wins.
--
Rich
RichD
> > Let's say a client confides to his lawyer, during a
> > case, regarding some aspect of the case which
> > implicates him in some other crime. He is anxious
> > to deflect the prosecution's attention away from this
> > fact. Presumably, the attorney is bound to silence,
> > and will co-operate.
>
> > For instance, he might face a theft charge. During
> > the arrest, the police found in his possession an
> > employee badge (for a locale other than the place
> > of arrest), whose validity they did not question.
> > However, the badge is a forgery (perhaps he uses
> > it to gain access to company premises). Naturally,
> > he wants to avoid any focus on this item, but he
> > confides in his lawyer.
>
> > case is resolved, then much time later, the same
> > person is involved in another case, where that
> > attorney has no interest. He reads about it in the
> > newspaper. He sees that the same employee
> > badge is again referenced, and the case hinges
> > on the issue of its validity. Is he obliged to speak
> > publicly?
>
> No.
>
> > Does the confidentiality thing still apply?
>
> Yes.
Is he obligated NOT to speak?
Are there any damages he might face, should he talk?
> > Suppose a miscarriage of justice will occur, if the
> > badge is wrongly judged to be valid. Then what?
>
> Sorry, At This Point, You're OUT Of Suppositions...
Just when it was getting interesting...
--
Rich
Deadrat
0480ef...@a39g2000pre.googlegroups.com:
What are you doing? Writing a screenplay?
Why not check out the Rules of Professional Conduct in your state?
Here's the relevant text from New Jersey, Rule 1.6b, the exception to
confidentiality:
<quote>
b) A lawyer shall reveal such information to the proper authorities, as
soon as, and to the extent the lawyer reasonably believes necessary, to
prevent the client or another person:
(1) from committing a criminal, illegal or fraudulent act that the lawyer
reasonably believes is likely to result in death or substantial bodily
harm or substantial injury to the financial interest or property of
another;
(2) from committing a criminal, illegal or fraudulent act that the lawyer
reasonably believes is likely to perpetrate a fraud upon a tribunal.
</quote>
As you can see, the lawyer must act if he believes he will be preventing
a serious harm. His belief must be based on fact, not supposition, and
the facts must be strong enough to make a prima facie case for the harm.
There are two other instances in which a New Jersey lawyer may break
confidentiality, 1) to defend himself, and 2) to rectify criminal or
fraudulent damage done by a client using the lawyer's services.
The rules are similar in other jurisdictions.
richard
As I see it, confidentiality only applies when the attorney is hired by the
client. Unless there is a retainer involved, the attorney can disclose that
he knows of a client of his who had referenced that same evidence. But he
might not be able to give the actual name. This would be enough information
for the cops to investigate the badge further.
"How did you come to know this badge was a forgery officer?"
"Anonymous tip."
richard
As soon as the college finds out the guy isn't an employee, then he's not
entitled to those privileges. Therefore, he would certainly lose his case.
richard
I believe items that do not fall under current retainer would not be
violating confidentiality.
For instance, a person is on trial for bank robery. He confides to his
attorney that he had committed two other roberies in another state and had
not been caught on. Perhaps thinking that the rules would keep him out of
jail on the grounds the attorney has to keep quiet.
As the robber was not a client then, the attorney should advise the
authorities of this fact.
Deadrat
news:1s311te3pbv7b.1trty01e19b8q$.d...@40tude.net:
Wrong, as usual. Confidentiality applies as soon as an attorney-client
relationship is formed, payment or no.
> the attorney can
> disclose that he knows of a client of his who had referenced that same
> evidence. But he might not be able to give the actual name. This would
> be enough information for the cops to investigate the badge further.
>
> "How did you come to know this badge was a forgery officer?"
> "Anonymous tip."
No lawyer would do this lest the tip come back to haunt him.
Deadrat
news:1r5imkaf8rcs8$.mu4w7cw4...@40tude.net:
Wrong, as usual. Whatever a client confides to his attorney about past
actions is covered.
richard
You're an attorney. I know you are. I see you walking down the street one
day. We start talking, then I slip in, "Two days I kidnapped two women, had
some fun with them then killed them. What do you think I should do with the
bodies?"
What is your legal obligation here? No money exchanged hands. Is there now
a client confidentiality in place or not? I say no. So being the civic
minded law abiding citizen you are, you go to the cops and explain what you
were just told. The cops investigate. They find the bodies.
In court, the defendant raises the question of client confidentiality
because he knows the only way the bodies could have been found was through
that attorney.
If the attorney had done nothing, he might POSSIBLY be charged with
"accessory after the fact".
Deadrat
news:9o114cw5rc86.108h2gsg5qviy$.d...@40tude.net:
I'm not.
> I see you walking down the street
Singing do wah diddy diddy down diddy do.
> one day. We start talking, then I slip in, "Two days I kidnapped two
> women, had some fun with them then killed them. What do you think I
> should do with the bodies?"
> What is your legal obligation here?
None.
> No money exchanged hands. Is there
> now a client confidentiality in place or not? I say no.
Amazingly enough, you're right. But it has nothing to do with money
changing hands, just the reasonable expectation of a layman. You must
know that I'm an attorney, and you must have solicited legal advice, and
I must have given some.
> So being the
> civic minded law abiding citizen you are, you go to the cops and
> explain what you were just told. The cops investigate. They find the
> bodies. In court, the defendant raises the question of client
> confidentiality because he knows the only way the bodies could have
> been found was through that attorney.
> If the attorney had done nothing, he might POSSIBLY be charged with
> "accessory after the fact".
Wrong. As usual. Generally, you have no obligation to report a crime,
even if you have actual evidence of one. (There are exceptions for
mandatory reporters of abuse.) You must take some action to become an
accessory after the fact.
RichD
>
> > However, at a later date, a criminal case does
> > occur, involving a possible misuse of the badge,
> > which the attorney learns of through the news,
> > wherein he has material, but confidential,
> > information. What options does have then?
>
> > To be more concrete, suppose it's a phony
> > college ID. He is refused medical treatment at
> > the campus infirmary. He sues, claiming employee
> > rights... but he is not an employee. (obviously
> > risky for him, but let's say he likes to live dangerously)
>
> > The injustice is financial loss for the college,
> > if he wins.
>
heh
Something like that.
> Why not check out the Rules of Professional Conduct in
> your state? Here's the relevant text from New Jersey,
> Rule 1.6b, the exception to confidentiality:
>
> <quote>
> b) A lawyer shall reveal such information to the proper authorities,
> as soon as, and to the extent the lawyer reasonably
> believes necessary, to prevent the client or another person:
>
> (1) from committing a criminal, illegal or fraudulent act that
> the lawyer reasonably believes is likely to result in death or
> substantial bodily harm or substantial injury to the financial
> interest of another;
>
> (2) from committing a criminal, illegal or fraudulent act that
> the lawyer reasonably believes is likely to perpetrate a fraud
> upon a tribunal.
> </quote>
>
> As you can see, the lawyer must act if he believes he will
> be preventing a serious harm.
>
> There are two other instances in which a New Jersey lawyer
> may break
> confidentiality, 1) to defend himself, and 2) to rectify criminal or
> fraudulent damage done by a client using the lawyer's services.
>
> The rules are similar in other jurisdictions.
ok, that's what I was looking for.
I'm in California, but it's probably the same.
--
Rich