(fiction) Your client bribed a juror -- now what?
Barry Gold
Must you report it?
This is from the TV Show "The Good Wife," season 1, episode "New
Deposit", aired 10/14/2009, http://tinyurl.com/yk6f2gc
The lead character is a junior associate at a law firm representing
the plaintiff in a personal injury suit. While going through the
deposition records, she finds a slip of paper with two rows of six
circles, one crossed out and "$35,000" written next to it.
After consulting their First Chair, she sends the firm's Private
Investigator to look into it. The PI discovers that a juror has
recently bought some expensive stuff and paid his back child support,
to the tune of $20,000. She suspects that the final payment of
$15,000 will be made just before the jury goes to deliberation.
The PI follows the juror, and sees him take an envelope from somebody
in an SUV. Unfortunately, other traffic prevents the PI from seeing
what is in the envelope, and she is able to get only a partial license
plate, "J15".
They go back to the First Chair. The jury has already retired to
deliberate, so there isn't time to cross-check the partial plate and
make & model. The First Chair is about to take their suspicions to
the judge, when she is summoned to his chambers. The juror reported
somebody following him.
She reports what she knows to the judge, but he holds her in contempt,
fines the firm $80,000, overrules her request for a mistrial and has
the jury present their verdict. To everybody's surprise, the jury
returns a substantial award of damages for their client. This
promptst the defense lawyer to enter settlement negotiations over this
case and the other members of the class.
At the end of the show, the client's wife gives the lead character a
box of photos and letters from other people who had been harmed by the
drug they were suing over -- other plaintiffs in the class action.
Then she lowers the rear door and we see the license plate, "J15 772".
The lead character returns to find a victory party in full swing. She
takes the First Chair aside and tells her that their client (or his
wife) bribed the juror. The First Chair tells her what happened, and
the FC tells her there is no requirement to report it because the
judge has already denied their motion.
So, if you are in this situation:
a) Are you allowed to report it
b) Are you _required_ to report it.
My analysis is that you are allowed to report it, because your
knowledge comes from your observations of behavior and objective
facts, not from anything disclosed by the client in confidence.
But is the First Chair right? Are they relieved of the obligation to
report their client's jury tampering because they had already
presented their suspicions and been overruled by the judge?
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Stuart A. Bronstein
> You discover that your client bribed a juror. Can you report it?
> Must you report it?
Seems to me that you may not be able to report it. But you should
immediately seek to be relieved as counsel. In the show if the
attorneys had done that, they would be completely right under the
circumstances, I'd think.
Mike Jacobs
> You discover that your client bribed a juror. Can you report it?
Maybe.
> Must you report it?
Almost certainly no.
Didn't we have a very extensive thread on MLM not long ago, about the
interaction of the lawyer's duty to preserve his client's confidences,
vs. the duty to society to avoid certain specific kinds of future
harm? Citing various subsections of ABA Model Rule 1.6 (which has
counterparts in almost all states AFAIK)? What do _you_ think the
answer to your qeustions would be, Barry, after reviewing those prior
discussions?
I'll wait while you look up Rule 1.6 and read it. I'm sure you can
find it in many places online. Here's one:
http://www.abanet.org/cpr/mrpc/rule_1_6.html
Next, let's note a few pertinent things about this Rule, OK?
It says, to begin with in paragraph (a), "A lawyer _SHALL_NOT_ reveal
information relating to representation of a client unless the client
gives informed consent, [is] impliedly authorized ... or ... permitted
by paragraph (b)."
This is a mandate, not a "pretty please" maybe-he-can, maybe-he-can't
clause. It's a "thou shalt not," like the 10 Commandments, which are
not the "10 suggestions."
Client confidentiality is the bedrock on which the whole legal system
survives or falters. Like the Catholic confessional, or the
psychotherapist's couch, society recognizes that persons must be able
to speak freely to their advocates or their confessors without fear or
holding back, if the socially valued purposes of that consultation
(fair legal process, or catharsis, or absolution) are to be carried
out. That salutary purpose would be thwarted at the outset if
clients (or patients or penitents) were afraid that anything they said
or showed in private to their professional confidant, would be
revealed to the secular authorities and perhaps lead to punishment.
So, the exceptions to the rule of client confidentiality (para (b),
remember) are pretty darn limited.
Para. (b) then says, "A lawyer _MAY_ reveal info... relating to the
representation of a client to the extent _the_lawyer_ reasonably
believes necessary" to carry out the following sub-paragraphs' listing
of permitted reasons. Note, this says he MAY, but is not REQUIRED
to, reveal those confidences, anbd ythat it is HIS CALL and no one
else's (i.e. permission is granted if THE LAWYER believes it is
necessary). The lawyer is virtually NEVER (at least, I can't think of
any situation where he would be) _required_ by ethics to rat on his
own client.
Anyway, that understood, here's the possibly pertinent excuses for
ratting out the bribe-giver (1.6(b)(1)-(6) (paraphrased), followed by
my [comments in brackets]:
1. to prevent (in the future, obviously) "reasonably certain" (_not_
just "possible" or even "more likely than 50/50") death or serious
bodily harm; [not likely, here]
2. to prevent a FUTURE crime or fraud that may result in serious harm
to the financial interests or property of another AND in furtherance
of which the client "used" the lawyer; [getting warm, since the
defendant corporation is going to wind up being deeply hurt
financially by this corrupt judgment against them, but here, the bribe
already happened, so not quite]
3. to prevent, mitigate, or rectify substantial financial injury that
might arise IN THE FUTURE from a crime or fraud the client has already
committed IN THE PAST; [bingo]
4-6. to CYA the lawyer's own ****s, by seeking legal advice on his
own obligations from an ethics guru, or to defend himself against a
claim that the lawyer screwed up in some way (tortiously, criminally,
or professional-ethically), or to comply with a court order or law.
[also maybe, per your fictional scenario, except it _didn't_ happen]
Note that the last exception means that, if the court ORDERS the
lawyer to reveal, he may do so with _ethical_ impunity; whereas if he
maintains confidentiality _in_spite_of_ a court order to reveal, he
remains ethically "clean" as far as any reprimand, suspension, or
disbarment by Bar Counsel is concerned, but he may ALSO be punished by
the Judge (by sanction, citation for contempt, etc.) for disobeying
the Judge's order.
The bottom line is, if the lawyer's OWN butt is ever in the frying pan
and about to be waved over the fire, he can jump ship with impunity,
and rat on the client. He can also do so if his conscience and his
tender feelings toward others' lives or property may urge him to take
steps to prevent Very Bad Things from happening to those other people,
due to Very Bad Acts by his Very Bad Client. But, other than the
court sanctions the lawyer may face if he disobeys a direct court
order to reveal the info, he is never legally REQUIRED to reveal
client confidences.
Hence, a private, money-making law firm which counts on new clients
coming in, and old clients coming back, and whose clients would cease
to do so and would go elsewhere if they felt this firm would ever rat
them out, is far more likely to simply say, "none of our business" and
keep their mouth SHUT about ANY of the above Para. B exceptions, with
the possible exception-to-the-exception of ratting only to keep their
OWN silk-stockinged feet out of jail shackles.
<snip>
> The lead character [subordinate attorney in a TV show]
> takes the First Chair aside and tells her that their client (or his
> wife) bribed the juror. The First Chair tells her what happened, and
> the FC tells her there is no requirement to report it because the
> judge has already denied their motion.
Sounds realistic to me (i.e., like what a typical, private law firm
partner would probably say in that circumstance, whether or not it is
what _I_ would say).
> So, if you are in this situation:
> a) Are you allowed to report it
Yes, probably. If you wanted to. Which this partner (either in
consultation with his other partners, or knowing what they would say)
decided they did _not_ want to do.
> b) Are you _required_ to report it.
Almost certainly not.
And, as to this junior associate, she has _no_ obligation _OR_ right
to report it, given what both the judge and her boss said. There is
no realistic chance that her own butt will be in a sling, so she must
go along with what the client and her superior wants. She could be
(and probably would be) (a) fired, and (b) reported to the Bar Counsel
for a Rule 1.6 ethical violation by her own former employer, if she
ratted this client.
> My analysis is that you are allowed to report it, because your
> knowledge comes from your observations of behavior and objective
> facts, not from anything disclosed by the client in confidence.
That would apply to the "attorney-client communication privilege" for
EVIDENTIARY purposes, if the lawyer were on the witness stand in court
and were being compelled, under court order, to reveal what the client
had told him in confidence for purposes of obtaining legal advice.
Here, the court has already said it doesn't care about the matter, and
is not pressing to have the confidence revealed. The duty to
preserve client confidences is quite a bit BROADER that the A-C Comm
evidentiary privilege, and extends to ANY information the attorney
knows about the client or about the subject of the representation as
to which the client has a reasonable expectation of confidentiality,
regardless of where or how the attorney learned of it.
> But is the First Chair right? Are they relieved of the obligation to
> report their client's jury tampering
They already _did_ report to the judge what they knew about the jury
tampering. And, nothing came of it because the judge wasn't
interested. Therefore, no further obligation.
> because they had already
> presented their suspicions and been overruled by the judge?
Exactly. However, I would go even further and say that they had no
_obligation_ to say anything, even then. IMO the only reason First
Chair said anything then was, because the _attorneys_ were under court
suspicion of doing something sanctionable by putting a tail on a
juror, so if they sat in chambers being grilled and said nothing,
their _own_ interests were at risk. That risk _excused_, but did not
_require_, the attorneys to reveal this client* confidence.
* BTW, the wife (almost certainly) _is_ a client, too, not just hubby
who actually suffered the bodily injury, in this personal injury tort
case. Almost every time a _serious_ bodily injury occurs to a
married person, one of the claims that arises from that injury is a
"loss of consortium" claim by the marital unit of husband and wife.
This was no penny-ante whiplash case, is was a major product liability
class action, IIUC. So, even if the show neglected to mention it,
the wife was almost certainly a client too. Even if no consortium
claim was at issue, it's also likely she signed the retainer papers,
_making_ her a client (at least for purposes of collecting on the
lawyers' billings to that client, if unpaid....).
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Cy Pres
Gold) wrote:
>So, if you are in this situation:
> a) Are you allowed to report it
> b) Are you _required_ to report it.
In New Jersey, yes and yes. Elsewhere, possibly yes and no. Many
jurisdictions allow a "noisy withdrawal" in cases like this, where the
lawyer drops the client like a hot potato and explicitly tells other
parties that he or she disavows work product created for the clieent,
but does not explicitly disclose the fraud. Everyone knows that this
means the lawyer has become aware of some kind of fraud by the client.
In New Jersey, however, this is not sufficient and actual disclosure
is required.
Bob
Gold) wrote:
>You discover that your client bribed a juror. Can you report it?
>Must you report it?
[snipped synopsis of The Good Wife episode]
"A lawyer who represents a client in an adjudicative proceeding and
who knows that a person . . . has engaged in criminal or fraudulent
conduct related to the proceeding shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal."
ABA Rule 3.3(b).
The show takes place in Chicago. I don't know what the rules are in
Chicago.
I suppose you could argue that the lawyer didn't KNOW of the
misconduct. Personally, I find the argument weak, and by failing to
report it, the lawyer subjects herself to possible discipline.
As an aside, I saw the episode. I think Margulies's performances are
great. However, the show's portrayal of legal stuff bears no
resemblance to reality. Maybe it's not as wacky as The Practice or
Ally McBeal, but it's pretty stupid stuff. I don't expect faithful
portrayals of legal principles, lawyers, judges, and trials, but it
would be nice if it were just occasionally realistic. The show seems
to have a particularly low opinion of judges as they're all portrayed
as lunatics.
Bob
<spam...@lexregia.com> wrote:
A lot of good being asked to be relieved would do in this particular
case. The jury had already delivered its verdict.
Bob
<mjaco...@gmail.com> wrote:
>On Oct 14, 8:50 pm, bg...@nyx3.nyx.net (Barry Gold) wrote:
>> You discover that your client bribed a juror. Can you report it?
>
>Maybe.
>
>> Must you report it?
>
>Almost certainly no.
>
>I'll wait while you look up Rule 1.6 and read it. I'm sure you can
>find it in many places online. Here's one:
>
>http://www.abanet.org/cpr/mrpc/rule_1_6.html
>
>It says, to begin with in paragraph (a), "A lawyer _SHALL_NOT_ reveal
>information relating to representation of a client unless the client
>gives informed consent, [is] impliedly authorized ... or ... permitted
>by paragraph (b)."
The key is whether the information the attorney learned about the
bribe necessarily relates to the representation of the client. As
broadly as that phrase has been construed, I've never seen anything
applying it in a case like this where the information was learned, not
through client confidences, but through independent investigation, and
not because the attorneys suspected the client of wrongdoing but
because they suspected the other side of wrongdoing. They were
happily willing to report the misconduct of the other side, just not
of their own client's.
Step back from the lofty notions of attorney-client privilege for a
moment and think about whether information like this should be
protected. On the other hand, it's not that different from an
ordinary citizen discovering evidence of a crime and not reporting it;
nothing requires the citizen to do so.
Cy Pres
<mjaco...@gmail.com> wrote:
>Para. (b) then says, "A lawyer _MAY_ reveal info... relating to the
>representation of a client to the extent _the_lawyer_ reasonably
>believes necessary" to carry out the following sub-paragraphs' listing
>of permitted reasons. Note, this says he MAY, but is not REQUIRED
>to, reveal those confidences, anbd ythat it is HIS CALL and no one
>else's (i.e. permission is granted if THE LAWYER believes it is
>necessary). The lawyer is virtually NEVER (at least, I can't think of
>any situation where he would be) _required_ by ethics to rat on his
>own client.
New Jersey's version of RPC 1.6 states the following:
"(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."
(Emphasis added).
This requires explicit disclosure, rather than the "noisy withdrawal"
permitted by other states. I am not sure, as a policy matter, whether
this actually has led to greater disclosure of fraud or decreased
fraud, but the New Jersey variant seems to me to be more morally
satisfying as a rule.
Daniel R.Reitman
>"A lawyer who represents a client in an adjudicative proceeding and
>who knows that a person . . . has engaged in criminal or fraudulent
>conduct related to the proceeding shall take reasonable remedial
>measures, including, if necessary, disclosure to the tribunal."
>
>ABA Rule 3.3(b).
>
>The show takes place in Chicago. I don't know what the rules are in
>Chicago.
>. . . .
A quick look at the Illinois rules indicates that the current rules
include:
(a) In appearing in a professional capacity before a tribunal, a
lawyer shall not:
. . .
(2) fail to disclose to a tribunal a material fact known to the lawyer
when disclosure is necessary to avoid assisting a criminal or
fraudulent act by the client;
. . .
(6) counsel or assist the client in conduct the lawyer knows to be
illegal or fraudulent;
. . .
(b) The duties stated in paragraph (a) are continuing duties and apply
even if compliance requires disclosure of information otherwise
protected by Rule 1.6.
. . . .
Ill. R. Prof. Conduct 3.3. There is not, however a rule similar to
ABA Rule 3.3(b) governing after-the-fact discovery of a crime or
fraud.
A revision of the rules goes into effect on January 1, 2010. Under
the new rules, correction is mandatory and disclosure appears to be
discretionary as necessary to ensure correction:
(b) A lawyer may reveal information relating to the representation of
a client to the extent the lawyer reasonably believes necessary:
. . .
(3) to prevent, mitigate or rectify substantial injury to the
financial interests or property of another that is reasonably certain
to result or has resulted from the client�s commission of a crime or
fraud in furtherance of which the client has used the lawyer�s
services;
. . . .
Ill. R. Prof. Conduct 1.6(b) (2010).
(b) A lawyer who represents a client in an adjudicative
proceeding and who knows that a person intends to engage, is engaging
or has engaged in criminal or fraudulent conduct related to the
proceeding shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the
conclusion of the proceeding, and apply even if compliance requires
disclosure of information otherwise protected by Rule 1.6.
Ill. R. Prof. Conduct 3.3(b), (c) (2010).
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INTENDED.
Wes Groleau
> You discover that your client bribed a juror. Can you report it?
> Must you report it?
I think Mike Jacobs quoted an ABA item that implies an answer to my
curiosity, but if someone would like to make it explicit...
Does attorney-client privilege apply if the information (as in this
fiction) was acquired without the client's cooperation?
--
Wes Groleau
The fight: learning and monitoring vs. acquisition and spontaneity
http://Ideas.Lang-Learn.us/WWW?itemid=50
Cy Pres
>A lot of good being asked to be relieved would do in this particular
>case. The jury had already delivered its verdict.
When there is a duty to disclose, it is generally ongoing, and
triggered upon learning of the event. What circumstances might
extinguish the obligation (if in a jurisdiction when it exists) is a
tricky problem.
An example would be the lawyers who discovered that their client had
let an innocent man be sentenced to death for a crime he actually
committed himself, who waited for their client to die before
disclosing. They could not have done otherwise without violating
ethics rules in their jurisdiction.
Mike
> Note that the last exception means that, if the court ORDERS the
> lawyer to reveal, he may do so with _ethical_ impunity; whereas if he
> maintains confidentiality _in_spite_of_ a court order to reveal, he
> remains ethically "clean" as far as any reprimand, suspension, or
> disbarment by Bar Counsel is concerned, but he may ALSO be punished by
> the Judge (by sanction, citation for contempt, etc.) for disobeying
> the Judge's order.
>
> The bottom line is, if the lawyer's OWN butt is ever in the frying pan
> and about to be waved over the fire, he can jump ship with impunity,
> and rat on the client.
What, then, prevents a judge from simply saying, in ALL cases, "I order
you to tell me anything you know about your client and this case before
me," and thus getting a 100% conviction rate? (Well, I realize there's
be public outcry, some lawyers would refuse, etc. but what, legally,
prevents it?)
Barry Gold
>Didn't we have a very extensive thread on MLM not long ago, about the
>interaction of the lawyer's duty to preserve his client's confidences,
>vs. the duty to society to avoid certain specific kinds of future
>harm? Citing various subsections of ABA Model Rule 1.6 (which has
>counterparts in almost all states AFAIK)? What do _you_ think the
>answer to your qeustions would be, Barry, after reviewing those prior
>discussions?
>
>I'll wait while you look up Rule 1.6 and read it. I'm sure you can
>find it in many places online. Here's one:
>
>http://www.abanet.org/cpr/mrpc/rule_1_6.html
Hmmm... interesting.
There are two parts to the rule:
a) The lawyer may not "reveal information relating to the
representation of a client"
b) Except...
(3) to prevent, mitigate or rectify substantial injury to the
financial interests or property of another that is reasonably
certain to result or has resulted from the client's commission
of a crime or fraud in furtherance of which the client has
used the lawyer's services;
So the first question is whether the information is "relating to the
representation" of the client. My guess is, yes, because they came
across the information while tailing a juror, and they were tailing
the juror in pursuit of their client's case, because they thought
the _other side_ had bribed him.
But since the information came from their own observations (and public
records), I think an argument could be made the other way.
The second question is: is this _all_ of:
a) to mitigate or rectify [yes]
b) substantial injury to the financial interests... of another [yes]
c) ...has resulted from the client's commission of a crime or
fraud [yes]
d) in furtherance of which the client has used the lawyer's
services. [?]
The client used the lawyer's services for his lawsuit, but the bribe
did not involve the lawyer. So I'm not sure if this case satisfies
clause D.
Anyway, you've satisfied me that the lawyer is not _required_ to
report it, even if they are _allowed_ to.
I guess the rules are different for lawyers than for doctors/
therapists/confessors. The latter are _required_ to report it if the
client tells them that he plans to commit a crime _in the future_ that
will result in somebody's death or substantial bodily harm. Also, at
least some of those are "required reporters" wrt to child abuse if it
comes to their attention.
Barry Gold
>New Jersey's version of RPC 1.6 states the following:
>
>"(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."
But in this case the act and the fraud upon the tribunal have
_already_ occurred. So my take is that even in NJ the lawyer would
not be _required_ to report it.
The show is set in Illinois, btw.
Barry Gold
>As an aside, I saw the episode. I think Margulies's performances are
>great. However, the show's portrayal of legal stuff bears no
>resemblance to reality. Maybe it's not as wacky as The Practice or
>Ally McBeal, but it's pretty stupid stuff. I don't expect faithful
>portrayals of legal principles, lawyers, judges, and trials, but it
>would be nice if it were just occasionally realistic. The show seems
>to have a particularly low opinion of judges as they're all portrayed
>as lunatics.
I agree with you about Margulies's performances. But if you think
_this_ show portrays all judges as lunatics, try "Raising the Bar".
Mike Jacobs
> Barry Gold wrote:
> > You discover that your client bribed a juror. �Can you report it?
> > Must you report it?
>
> I think Mike Jacobs quoted an ABA item that implies an answer to my
> curiosity, but if someone would like to make it explicit...
>
> Does attorney-client privilege apply if the information (as in this
> fiction) was acquired without the client's cooperation?
I'm sorry you missed that peripheral angle obliquely covered in my
original reply, but to reiterate, the duty of an attorney to preserve
his client's confidences, _however_ and for whatever purposes that
confidential info was learned by the attorney, is much _broader_ than
the extent of the purely evidentiary privilege that allows a witness
to refuse to testify about confidential attorney-client
communiciations that were made for the purpose of obtaining legal
advice (a/k/a the A-C privilege). The A-C privilege, IOW applies to
only one subset of the body of confidential client information the
lawyer has an ethical duty to protect.
So, no, the fictional example given would NOT, IMO, come within the A-
C privilege, since the lawyer did not learn the info from the client
in the course of a conversation for the purpose of obtaining legal
advice; the lawyer learned it on her own, by following a suspiciously-
behaving juror. So, a court _could_ compel the attorney to reveal
that confidence, without the client's permission. However, it _was_ a
confidential matter "relating to the representation of the
client" (the client wife clearly wanted to keep her behavior a secret,
not made public knowledge) and hence, the attorney would not be
ethically compelled (under the Model ABA rule and the version adopted
in many states) to reveal it, even then; he is empowered to choose,
per his own conscience, whether he ought to reveal it or not. That
ethical choice would not, however, exempt him, whichever way he
decided, from the consequences of disobeying a direct court order
compelling him to reveal the information.
Cy Pres
wrote:
Attorney/client privilege, which is a product of the Sixth Amendment.
Also, the prior crimes generally did not involve the lawyer's
services, so do not fall within the rule.
Barry Gold
>> The bottom line is, if the lawyer's OWN butt is ever in the frying pan
>> and about to be waved over the fire, he can jump ship with impunity,
>> and rat on the client.
Mike <prab...@shamrocksgf.com> wrote:
>What, then, prevents a judge from simply saying, in ALL cases, "I order
>you to tell me anything you know about your client and this case before
>me," and thus getting a 100% conviction rate? (Well, I realize there's
>be public outcry, some lawyers would refuse, etc. but what, legally,
>prevents it?)
Oh let's see...
1. The lawyer would file a notice of appeal about 3 seconds after
receiving the judge's order. The appellate court would overturn the
order and give the judge a tongue-lashing.
2. The lawyer would contact the council on judicial fitness, or
whatever they call it in your state. After a few such events, the
Council would call the judge in for a hearing. Probably at first they
would only reprimand him. If he continued the behavior, he would
probably be suspended form hearing cases, and eventually referred to
an appropriate body for removal from office.
3. In many states, lawyers are allowed an automatic challenge of _one_
judge. If a judge gets too far out of line, he will find himself
without any cases to hear, as no lawyer will be willing to appear
before him.
Basically, we expect judges to _follow the law_. The law specifies
when a judge may order a lawyer to disclose something he knows about
his client. Any other order is not valid, and will be overturned on
appeal, result in disciplinary action, etc.
Mike Jacobs
> Mike Jacobs wrote:
> > Note that the last exception means that, if the court ORDERS the
> > lawyer to reveal, he may do so with _ethical_ impunity; whereas if he
> > maintains confidentiality _in_spite_of_ a court order to reveal, he
> > remains ethically "clean" as far as any reprimand, suspension, or
> > disbarment by Bar Counsel is concerned, but he may ALSO be punished by
> > the Judge (by sanction, citation for contempt, etc.) for disobeying
> > the Judge's order.
> What, then, prevents a judge from simply saying, in ALL cases, "I order
> you to tell me anything you know about your client and this case before
> me," and thus getting a 100% conviction rate? (Well, I realize there's
> be public outcry, some lawyers would refuse, etc. but what, legally,
> prevents it?)
The bottom line is that society and its values, including those the
Constitution deems fundamental and inalienable, determine what is
permissible, and what is not, both in the substantive law, and in the
rules of the "game" of judicial procedure. The judge, too, has to act
within the law. The lawyer only is at risk of being penalized with a
valid contempt citation if he refuses to obey a LAWFUL court order.
If the judge's ruling is arbitrary and capricious, or fails to
exercise the required judicial discretion to protect the socially-
valued confidentiality of attorney-client communications, or to honor
the client's Constitutionally protected right of privacy as to other
matters the attorney has a duty to preserve, absent some compelling
government interest that creates a need for the information sufficient
in the particular instance to outweigh those other considerations; or
is simply wrong in interpreting the law, the lawyer is within his
rights to refuse to answer. He can then appeal to a higher court,
who will (hopefully, unless society's values actually _have_ abandoned
support for the principles of privacy and confidentiality) overturn
the lower judge's ruling and allow the client's confidence to be
preserved in the hands of his lawyer.
There is almost never a compelling government need for inquiry into
privileged attorney-client communications. It is perfectly
permissible to ask a fact witness, including a party, "What did you do/
where were you at time X?" but it is impermissible to ask that same
witness, "What did you TELL YOUR ATTORNEY you did, and where you were,
at time X?" Note that, if the witness is telling the truth, the
answers to those questions convey exactly the SAME substantive
information; so the _only_ reason I can think of why anyone would ask
the latter question, is in hopes of proving that the witness is lying
in his direct testimony because he told the lawyer something else in
private.
There are other, perfectly good means of cross-examining a witness (or
producing other witnesses with a different story to tell) to convince
the factfinder that a witness is lying. Thus, it is not necessary to
impinge on the socially-valued confidentiality of attorney-client
communications to do that. All the same rationales militate against
forcing the _attorney_ to be the one to reveal those confidences
against the client's will, if not more so - since that would undermine
the confidence the client has in his own lawyer to preserve his
secrets, something which society values as necessary to allow lawyers
to give competent legal advice based upon knowing the _whole_ story,
not having their clients holding anything back.
As to other kinds of confidential information a lawyer may hold for
his client (other than privileged attorney-client communications made
for the purpose of obtaining legal advice), there _are_ sometimes
valid reasons why the attorney may be required to reveal them. Frex,
he may have to reveal the client's confidential medical records, if
those are relevant to the case - or else, be forced to drop the case.
As long as the judge's decision to require disclosure is a
procedurally valid one, based on his sound discretion acting within
the law applicable to judges, the attorney can be forced to comply, on
pain of contempt or other sanctions.
And, as we have not mentioned yet, _not_ EVERYTHING that comes into
the lawyer's knowledge regarding his client's case, is protected.
The client cannot protect from being revealed the SUBSTANCE of the
FACTUAL information about a transaction or occurrence (say, a "smoking
gun" document in an Enron-type civil case, or an actual smoking gun in
a murder case) that comes to his attention, by the simple expedient of
giving it to his lawyer. The lawyer has a duty, as an officer of the
court, to disclose the documentary evidence or tangible objects in his
possession; he is simply prevented by the confidentiality rules from
telling anything about HOW it came into his possession, or what the
client told him about it.
Thus, the corporate lawyer would have to tell his fat-cat client that
he has an obligation to turn the "Did we screw 'em, and how" memo over
to the widow-shareholder plaintiff in the business-tort case, because
otherwise the lawyer himself could be cited as part of the civil
conspiracy and also charged with obstruction of justice or spoliation
of evidence; and the criminal defense lawyer in the murder case would
have to arrange for the "real evidence" (the tangible object which, in
this case, is a purported murder weapon) to be turned over to the
prosecution, for analysis (WITHOUT saying, "I got this from my client,
BTW" or "My client used this when he shot Cock Robin"). Else, that
lawyer is ALSO at risk of being an accessory after the fact,
participating in the cover-up of the original crime, or of a later
crime such as obstruction of justice. You will note that even the
attorneys for the Pres of the USA, e.g. John Dean in the Nixon White
House, were compelled to turn over documentary evidence they had
regarding Nixon's conversations in the Oval Office, by order of the
judges investigating the Watergate break-in and the even more serious
cover-up that followed.
Seth
>> The bottom line is, if the lawyer's OWN butt is ever in the frying pan
>> and about to be waved over the fire, he can jump ship with impunity,
>> and rat on the client.
>
>What, then, prevents a judge from simply saying, in ALL cases, "I order
>you to tell me anything you know about your client and this case before
>me," and thus getting a 100% conviction rate? (Well, I realize there's
>be public outcry, some lawyers would refuse, etc. but what, legally,
>prevents it?)
The fact that he'd be an ex-judge immediately thereafter, and probably
disbarred in the near future? OK, that's practical, not legal; but
any penalties he attempted to impose for violating that order would be
overruled instantly.
Seth
Silence DoGood
>
> it's not that different from an
> ordinary citizen discovering evidence of a crime and not reporting it;
> nothing requires the citizen to do so.
No more different than night from day. No oath is needed to be a
citizen.
In defense of our fictional lawyer, I don't understand what evidence s/
he would have other than by getting his/her own hands dirty, which is
a separate issue.
I don't think a lawyer should be expected to raise an issue against
his own client based on mere suspicion.
Tim Smith
wrote:
> So the first question is whether the information is "relating to the
> representation" of the client. My guess is, yes, because they came
> across the information while tailing a juror, and they were tailing
> the juror in pursuit of their client's case, because they thought
> the _other side_ had bribed him.
Wait...why would they think the other side bribed the juror? You said
in the original post:
> The lead character is a junior associate at a law firm representing
> the plaintiff in a personal injury suit. While going through the
> deposition records, she finds a slip of paper with two rows of six
> circles, one crossed out and "$35,000" written next to it.
Every document produced by the other side is going to be cataloged and
stamped. so they should know immediately that the note did not come from
the other side.
Furthermore, depositions would happen before jury selection, don't they?
The fact that the note indicates a specific juror shows it was added
long after depositions, and so could only have been added by someone on
their side, who has access to the file (and who did not realize that you
don't leave paper trials of bribery--especially in a place where they
might be found by people who might have an ethical observation to report
them).
--
--Tim Smith
Tim Smith
Cy Pres <c.p...@yahoo.com> wrote:
>
> New Jersey's version of RPC 1.6 states the following:
>
> "(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."
>
> (Emphasis added).
In the hypothetical, the bribe was believed to have been only partially
paid, with another payment still to come. Suppose, however, the bribe
had been paid in full.
The way that statute reads, it only covers disclosure to prevent a
future criminal, illegal or fraudulent act. It seems that it would not
require the lawyer to disclose a completed act.
On the other hand, it says to prevent the client OR ANOTHER PERSON
(emphasis added) from committing such an act. Could one argue that the
juror who accepted the bribe commits his crime when he votes in favor of
the client? That would then be a future act, that can be prevented by
the lawyer's disclosure.
--
--Tim Smith
Barry Gold
>Wait...why would they think the other side bribed the juror? You said
>in the original post:
bg...@nyx.net (Barry Gold) wrote:
>> The lead character is a junior associate at a law firm representing
>> the plaintiff in a personal injury suit. While going through the
>> deposition records, she finds a slip of paper with two rows of six
>> circles, one crossed out and "$35,000" written next to it.
bg...@nyx.net (Barry Gold) wrote:
>Every document produced by the other side is going to be cataloged and
>stamped. so they should know immediately that the note did not come from
>the other side.
I left out some details.
1. The defendant's "first chair" had recently been accused of jury
tampering, and the case was still pending before the Bar.
2. The box with the discovery in question had been sitting open in the
courtroom while associates (for the plaintiff's firm) were going
through it to hand relevant material to the first or second chair.
Further, it was close enough to the defendant's counsel table that
a scrap of paper could have fallen into it.
Now, as it turned out, the plaintiff (the protagonist's client) had
borrowed that particular depo to go over it, and the slip of paper had
apparently fallen in at that point. But under the circumstances, the
protagonist had good reason to think this might indicate bribery by
the defense.
Cy Pres
<reply_i...@mouse-potato.com> wrote:
>In article <3htjd5dr5hfqv8j62...@4ax.com>,
> Cy Pres <c.p...@yahoo.com> wrote:
>> New Jersey's version of RPC 1.6 states the following:
[Version of MRPC 1.6 containing "shall" language.]
>In the hypothetical, the bribe was believed to have been only partially
>paid, with another payment still to come. Suppose, however, the bribe
>had been paid in full.
This might have to do with whether the lawyer's services were
involved, in any way, in this case, or would be likely to be involved
in an expected continuation of the fraud. If you knew a client had,
in the past, bribed a jury in a court where you never practiced, in
another jurisdiction, and got away with it, you might not be obliged
to disclose if you had nothing to do with that representation.
I'd think you'd be in trouble, though, if the client had bribed a jury
in a criminal case to find him not guilty, and you were now
representing that client in a civil case in which the supposed
innocence established in the criminal trial was an issue--which it
might not be likely to be but that is another issue.
>The way that statute reads, it only covers disclosure to prevent a
>future criminal, illegal or fraudulent act. It seems that it would not
>require the lawyer to disclose a completed act.
If the client used the lawyer's services in connection with
perpetrating a fraud upon a court, the disclosure requirement is
ongoing. To the extent the tribunal continues to place reliance upon
the previous factual assertions, failure to disclose is an independent
violation of the Rules (MRPC 3.3 in particular).
>On the other hand, it says to prevent the client OR ANOTHER PERSON
>(emphasis added) from committing such an act. Could one argue that the
>juror who accepted the bribe commits his crime when he votes in favor of
>the client? That would then be a future act, that can be prevented by
>the lawyer's disclosure.
>From the comments to MRPC 3.3, which prohibits a lawyer submitting
materially false evidence to a court and imposes an ongoing duty to
disclose such false evidence if later discovered to be false,
specifically:
---
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously made to
the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the
controlling jurisdiction known to the lawyer to be directly adverse to
the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer,
the lawyer's client, or a witness called by the lawyer, has offered
material evidence and the lawyer comes to know of its falsity, the
lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a criminal
matter, that the lawyer reasonably believes is false.
---
Remedial Measures
[10] Having offered material evidence in the belief that it was true,
a lawyer may subsequently come to know that the evidence is false. Or,
a lawyer may be surprised when the lawyer's client, or another witness
called by the lawyer, offers testimony the lawyer knows to be false,
either during the lawyer's direct examination or in response to
cross-examination by the opposing lawyer. In such situations or if the
lawyer knows of the falsity of testimony elicited from the client
during a deposition, the lawyer must take reasonable remedial
measures. In such situations, the advocate's proper course is to
remonstrate with the client confidentially, advise the client of the
lawyer's duty of candor to the tribunal and seek the client's
cooperation with respect to the withdrawal or correction of the false
statements or evidence. If that fails, the advocate must take further
remedial action. If withdrawal from the representation is not
permitted or will not undo the effect of the false evidence, the
advocate must make such disclosure to the tribunal as is reasonably
necessary to remedy the situation, even if doing so requires the
lawyer to reveal information that otherwise would be protected by Rule
1.6. It is for the tribunal then to determine what should be
done--making a statement about the matter to the trier of fact,
ordering a mistrial or perhaps nothing.
[11] The disclosure of a client's false testimony can result in grave
consequences to the client, including not only a sense of betrayal but
also loss of the case and perhaps a prosecution for perjury. But the
alternative is that the lawyer cooperate in deceiving the court,
thereby subverting the truth-finding process which the adversary
system is designed to implement. See Rule 1.2(d). Furthermore, unless
it is clearly understood that the lawyer will act upon the duty to
disclose the existence of false evidence, the client can simply reject
the lawyer's advice to reveal the false evidence and insist that the
lawyer keep silent. Thus the client could in effect coerce the lawyer
into being a party to fraud on the court.