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The Greater of Two Evils
February 1, 2008 8:36 PM   Subscribe

Two lawyers have known since 1982 that an innocent man was behind bars for a murder their own client committed. The legal reason for this travesty: the absolutism of the client-attorney privilege, which guarantees that anything a client tells his lawyers will be kept in confidence forever.
posted by AceRock (55 comments total) 11 users marked this as a favorite

 
That's a pretty inaccurate characterization of the attorney-client privilege, which neither covers "anything a client tells his lawyers" nor lasts forever.
posted by jedicus at 8:45 PM on February 1, 2008 [3 favorites]


They asked their client Wilson: Was that you at the McDonald’s? He allowed that it was.

Absent the attorney-client privilege, Wilson presumably wouldn't have confessed to his lawyers in the first place, and Logan still would've gone to jail.
posted by Mr. President Dr. Steve Elvis America at 8:47 PM on February 1, 2008 [4 favorites]


Yes, clearly it's another man's lawyers' fault that an innocent man is in prison, and not the fault of the prosecutors or investigating police, or the intentional inadequacy of the public defender's office.
posted by ROU_Xenophobe at 8:54 PM on February 1, 2008 [1 favorite]


The first rule of law school is the same as the second rule of law school...
posted by damn dirty ape at 8:54 PM on February 1, 2008


Thank you, Mr. President, for pointing out the obvious counter to attacks on the attorney-client privilege. It's a simple point too often forgotten by silly articles like this one.

I can only imagine what the author's reaction would have been had he learned about the Garrow case. Not as morally wrenching as this one but definitely more gruesome.
posted by saslett at 8:57 PM on February 1, 2008


jedicus: The Wikipedia article indicates that attorney-client privilege lasts even beyond the death of the client in the US (though in this case the client apparently agreed to waive it after his death). I also don't see what sort of thing you are referring to that a client tells his lawyer that isn't covered by attorney-client privilege (exceptions relating to taxation or communications for the purpose of committing a crime don't have any relevance here).
posted by ssg at 9:02 PM on February 1, 2008


ssg: The privilege generally does not survive the death of both parties, which may be a long time, but it's not forever. Also, I did not claim that any exceptions applied in this case, merely that the privilege does not cover everything a client tells his or her lawyer, which is plainly true. I realize the characterization of the privilege came from the article, not you, but it's an example of sloppy journalism.
posted by jedicus at 9:07 PM on February 1, 2008


There's also the case of lawyer Leslie P. Smith last month in Virginia: Lawyer Reveals Secret, Toppling Death Sentence.
posted by ericb at 9:22 PM on February 1, 2008


yeah... not so thrilled with the journalist. i would love to see how he feels if he goes up on trial and the lawyer was free to disclose any information he/she felt like if they just didn't like the client. ...gotta say, people should spend at least 5 minutes reading up on a topic before they publish themselves.
posted by Doorstop at 9:24 PM on February 1, 2008


New York Times (October 11, 1914): Should Lawyer Betray Client to Save Innocent Man? [PDF].

The case of Little Mary Phagan.
posted by ericb at 9:36 PM on February 1, 2008 [1 favorite]


Wouldn't the privilege only last for however long the lawyer wanted to continue to be a lawyer? I'm assuming the only recourse against a lawyer that breaks this privilege is to disbar them. If the lawyer was so conflicted about knowing the information, would the morally correct, but extremely difficult position be to step down from being a lawyer and reveal the information?
posted by fermezporte at 10:00 PM on February 1, 2008


I think there was a Twilight Zone, an Outer Limits, and a movie with Al Pacino (I think), that went like this. Mind you, in the movie, the lawyer character didn't die, he actually violated that confidentiality, in court.

While I doubt that happens much in reality (the in-court confidentiality breach), the concept of legal confidentiality, much like the confidentiality of the confessional, is a system that I believe requires a little bit of revision now that we have developed the potential, as a species, for amorality.

What is funny to me, a man who confesses murder to his lawyer under confidentiality, walks free, and is later accused by his former lawyer, might a) be given an automatic freebie based on double jeopardy, and b) could then countersuit for breach of confidentiality. It's pretty stupid when you think about it.
posted by Reth_Eldirood at 10:06 PM on February 1, 2008


I seem to remember an episode of The Practice years ago that dealt with this. A client mentions to his lawyer that he killed someone's wife but the husband was on trial. The client even goes to the judge over the case if I remember correctly. I'm sure someone here can come up with the example.
posted by Octoparrot at 10:23 PM on February 1, 2008


At this troubled moment in our nation's history, independent journalists ought to be agitating for more, not less protection under the law.
posted by felix betachat at 10:24 PM on February 1, 2008 [3 favorites]


I think this would have played out completely differently in Australia, for at least three reasons: (1) the duty of disclosure to the court (which also disallows half-truths and omissions); (2) the illegality of representing a client in illegal or unconscionable conduct; (3) law society rules forbidding conduct designed to defeat the ends of justice, or bring the practice of law into disrepute. I'm surprised at least one or two of those wouldn't apply in the relevant State of the USA too.
posted by aeschenkarnos at 10:31 PM on February 1, 2008 [4 favorites]


If the lawyer was so conflicted about knowing the information, would the morally correct, but extremely difficult position be to step down from being a lawyer and reveal the information?

I don't think lawyers necessary maintain confidentiality solely because they're afraid of discipline. It's not that simple. I think a lot of lawyers feel that the duty to the client is extremely important, and once they promise their loyalty, they can't just withdraw it because things get a little rougher than expected.

It's not just about avoiding censure. It's about living up to the duties you've voluntarily assumed and not betraying the people who have relied on your word. Even if they turn out to be bigger scumbags than anticipated.
posted by Mr. President Dr. Steve Elvis America at 10:38 PM on February 1, 2008 [1 favorite]


(1) the duty of disclosure to the court (which also disallows half-truths and omissions); (2) the illegality of representing a client in illegal or unconscionable conduct; (3) law society rules forbidding conduct designed to defeat the ends of justice, or bring the practice of law into disrepute.

Australian lawyers really have an affirmative duty to disclose facts prejudicial to their clients? How does that play out? Do you have to try to elicit the bad testimony from your own client in court?

A U.S. lawyer isn't allowed to help a client break the law, of course, but the client in the article had already finished broking the law by the time he met the lawyer, and there's no indication that he was using the lawyer's services to break the law any further.

U.S. lawyers aren't allowed to bring the practice of law into disrepute, but zealously defending a client isn't classified as disreputable, and neither is keeping a client's confidences.
posted by Mr. President Dr. Steve Elvis America at 10:49 PM on February 1, 2008


Here's an overview of the position in New South Wales. A lot of this is federal (our system has much more distinct federal to state heirarchy). Other states may differ a bit, but much less than between US states.

Specifically:
* It is important to note the well recognised exception to the existence of legal professional privilege, namely, the situation where communications between lawyer and client can be considered criminal in themselves, or intended to further any criminal purpose. (R v Cox and Railton (1884) 14 QBD 143)

* This principle has been broadened recently to include advice sought or given for the purpose of effecting iniquity. Iniquity means fraud in a wide sense, or misconduct of such a nature that it is in the public interest that it ought be disclosed. (Barclays Bank Plc v Eustice [1995] 1 W.L.R. 1238 at 1249)


In this case, for the lawyer's client to allow a person to be tried and convicted of a crime in his stead, knowing them not guilty, and knowing himself guilty, seems a very clear example of misconduct that in the public interest, ought to be disclosed.

Australian lawyers really have an affirmative duty to disclose facts prejudicial to their clients? How does that play out? Do you have to try to elicit the bad testimony from your own client in court?

Not exactly (except in family law); but you can't present false evidence (obviously), or by failure to present facts, leave the court with a false impression. (From the article: "Meek v Fleming is something of a classic case on this issue. It was found that the defendant’s lawyers had concealed facts such that 'the judge and jury were misled in an important manner, namely the credibility of the defendant'. In this case the defendant’s lawyers made no comment when the defendant was repeatedly referred to as 'inspector', when the defendant had in fact been recently demoted from that rank. This had a material effect on the outcome of the case.")

A U.S. lawyer isn't allowed to help a client break the law, of course, but the client in the article had already finished broking the law by the time he met the lawyer, and there's no indication that he was using the lawyer's services to break the law any further.

Yes, that's what makes it such an interesting and undesirable situation. The USA also has stronger protection against self-incrimination than we do (the 5th Amendment).

U.S. lawyers aren't allowed to bring the practice of law into disrepute, but zealously defending a client isn't classified as disreputable, and neither is keeping a client's confidences.

Well yes, but what is done and how it is done is what would make the behavior disreputable.

Actually another relevant issue is the status of our Law Societies. They are, generally (it varies from state to state), in charge of registration and disbarment of lawyers, and tend to be highly protective of individual lawyers, and I expect if a case like this came up here (disregarding for the moment the current ethical rules, and taking it to be a novel situation), then they would strongly argue that the lawyers in question not be punished, whichever choice the lawyers made. However, it's very much in lawyers' interests to have some clear exceptions to professional privilege, to avoid exactly this kind of quagmire, and what I'd expect the Law Society to say would be something along the lines of "in the absence of clarity, these lawyers were put in an invidious situation where they had to do this moral wrong to uphold their ethical duty - we ask that they not be punished, and clear rules be provided".

I'd expect the outcome would vary between US states, too.
posted by aeschenkarnos at 11:44 PM on February 1, 2008


This is one of those memories from an unrealized parallel universe that are lately plaguing me so, probably, but wasn't the father of Ari Fleischer (one of Bush's press secretaries) running around the country a few years ago flogging a book which claimed LBJ had had Kennedy killed, and which was mainly based on documents the elder Fleischer had seen and had in his possession as LBJ's attorney?

When challenged about the violation of privilege this seemed to entail, he said some complicated thing about privilege not applying in some circumstances when a client was also a lawyer the way LBJ was.
posted by jamjam at 11:45 PM on February 1, 2008


I suppose the summary of the reasoning behind the Australian position is that a person, in all dealings with the law, is expected to abide by the law. So the client goes to the lawyer and says they want something done, and the lawyer then, within the law, advises the client as to how within the law the thing might be done. The lawyer's first duty is to the law itself, and secondly to the client, and if the two duties are in conflict, the law must prevail.
posted by aeschenkarnos at 11:50 PM on February 1, 2008 [2 favorites]


In this case, for the lawyer's client to allow a person to be tried and convicted of a crime in his stead, knowing them not guilty, and knowing himself guilty, seems a very clear example of misconduct that in the public interest, ought to be disclosed.

This is very odd reasoning to my American legal mind. I suppose I'm accustomed to our fifth amendment protections, and the notion of it being misconduct not to confess to a crime voluntarily rubs me the wrong way.

I don't think "effecting iniquity" can be pushed quite as far as you want, even without a fifth amendment analog. Defending a client is so fundamental to being a lawyer that merely mounting a defense can't possibly in and of itself be iniquitous. This being true, I simply can't imagine that it's iniquitous not to take affirmative steps to incriminate a client.

From my perspective, I think the precedent you cite is more reasonably applied to situations in which a client is seeking the lawyer's assistance in planning some prospective action that while technically not illegal is contrary to public policy.

but you can't present false evidence (obviously), or by failure to present facts, leave the court with a false impression. (From the article: "Meek v Fleming is something of a classic case on this issue. It was found that the defendant’s lawyers had concealed facts such that 'the judge and jury were misled in an important manner, namely the credibility of the defendant'. In this case the defendant’s lawyers made no comment when the defendant was repeatedly referred to as 'inspector', when the defendant had in fact been recently demoted from that rank. This had a material effect on the outcome of the case.")

I strongly suspect (from the context provided by the immediately previous bullet point in the article) that the statements in Meek were made by witnesses called by the defense. If that's true, the rule is basically the same in the U.S. A lawyer can't introduce testimony that he knows to be false.

That's far removed, though, from imposing an affirmative obligation on a lawyer to intervene in an unrelated trial, thereby incriminating his client.
posted by Mr. President Dr. Steve Elvis America at 12:10 AM on February 2, 2008 [3 favorites]


I suppose the summary of the reasoning behind the Australian position is that a person, in all dealings with the law, is expected to abide by the law. So the client goes to the lawyer and says they want something done, and the lawyer then, within the law, advises the client as to how within the law the thing might be done.

That's basically the American rule. Perhaps the difference is simply that the U.S. constitution creates a basically insurmountable barrier to any attempt to criminalize a failure to incriminate oneself.
posted by Mr. President Dr. Steve Elvis America at 12:14 AM on February 2, 2008


If you start from the premise that every client deserves an adequate defense, strict attorney client privelege seems a must. Not just because a client deserves it, but because of the impact one high profile breach of confidentiality could have on all future attorney client communication and subsequently on the ability of attorneys to provide an adequate defense for their clients. No moral decision is made in a vacuum.
posted by BrotherCaine at 12:21 AM on February 2, 2008


What is needed is a middle way. The lawyer of the actual murderer needs some way to present testimony to the court trying the innocent man (or an appeals court if the information comes out after the conviction) without revealing the source of his information, thus preserving attorney-client privilege. Journalists are allowed to protect their sources, after all.

Perhaps some kind of lawyer advocate could actually testify at the appeal, such that the original lawyer does not have his client list immediately subject to scrutiny for murder. Such testimony could then be weighed by the court as to its relevence, and possibly spark a reinvestigation of the original trial and the strength of the conviction evidence - after all, if the man is actually not guilty, the prosecution case is going to have to be somewhat shaky! Such testimony shouldn't be strong enough on its own to warrant quashing of the verdict, but it should at least raise questions as to the strength of the conviction of the supposed innocent man.

You'd need a law to allow it though, and presumably some exemption to hearsay would have to be written.
posted by ArkhanJG at 1:03 AM on February 2, 2008 [1 favorite]


BrotherCaine: yes, your logic is sound as to why attorney-client privilege is required. However, lawyers also have a duty to the law and justice itself, which is why they're not allowed to lie in court or knowingly introduce false testimony. There should be a way by which both can be served.
posted by ArkhanJG at 1:06 AM on February 2, 2008


Mr. President - as I understand US law, failure to hand over keys to encrypted subpoenaed documents will get you jailed for contempt of court. assuming my understanding is correct, that certainly looks to me like a criminalisation of a failure to incriminate oneself.
posted by russm at 1:34 AM on February 2, 2008


As I understand it, you have the right to remain silent. That is: You can refuse to incriminate your self by not saying a thing. You can not refuse to incriminate yourself by actively lying in court.

Lying in the court is perjury, which is a crime. In this particular story, the lawyer helped the client commit perjury, and committed it himself.
posted by qvantamon at 2:26 AM on February 2, 2008


This case does help explain why torture needs to be legalized.

We consider the Jack Bauer scenario:
The bad guy know where the bomb is planted. If he doesn't talk, thousands of people will die.

Without a new law, if Jack tortures the bad guy, he could get the information and save those people, but then he could LOSE HIS PENSION.

I guess if you think he'd take that kind of chance, you don't know Jack.
posted by hexatron at 5:18 AM on February 2, 2008


russm,

There's a difference between incriminating yourself through providing properly requested evidence to the court and incriminating yourself through your own testimony. Technically what is prohibited in the US in compelling someone to "be a witness against himself," I suppose you could extend that to include be compelled to provide incriminating evidence, but it's a bit of a stretch and would render the criminal justice system unworkable. So, the only thing(to my knowledge) you have a right to avoid is incriminating yourself through direct testimony.

Preview: And as I write that, I notice that a court in Vermont held that the situation you describe would violate the Fifth Amendment, so maybe it would.
posted by Bulgaroktonos at 6:22 AM on February 2, 2008


In the UK, a solicitor's duty of confidentiality may be overridden where the solicitor suspects that the client is about to commit a crime.
posted by grouse at 6:45 AM on February 2, 2008


In the UKEngland and Wales...

I don't actually know what the law is in Scotland or Northern Ireland.
posted by grouse at 6:48 AM on February 2, 2008


Also, this page suggests that solicitors are very limited in the sorts of defenses they can raise for a client who has admitted guilt to the solicitor. They can claim that the prosecution hasn't proven their case but not that the client is innocent.
posted by grouse at 7:20 AM on February 2, 2008


Bulgaroktonos - do you have a reference to that Vermont decision? if "properly requested evidence" includes the contents of your brain, how does it not include "were you at the kwik-e-mart on wednesday night?" or the responses to similar questions? it's a tangent, I know, but an obvious follow-on to Dr. Steve's comment about the all-powerfulness of the 5th amendment...
posted by russm at 7:54 AM on February 2, 2008


Then why did Paul Belmondo's attorney give those incriminating tapes to the police? Because it was Canada?
posted by StickyCarpet at 7:59 AM on February 2, 2008


Wouldn't the privilege only last for however long the lawyer wanted to continue to be a lawyer? I'm assuming the only recourse against a lawyer that breaks this privilege is to disbar them.

Disbar them and throw them in jail.
posted by delmoi at 8:33 AM on February 2, 2008


I am a criminal defense attorney. I understand and agree with the attorney-client privilege. I have never once considered divulging anything that a client has said to me (usually this sort of info involves a phone number, an address, a co-conspirator, a source, or previous similar crimes).

If I represented someone who divulged to me that he had committed a murder that someone else was serving time for, I would immediately call the Bar, turn in my license, and contact the detectives and prosecutors working on the case. A man's life has more value to me than a portion of a professional ethical code.

But I don't think the rule should be changed. If I broke the rule in the example above, I don't think I should get to keep my law license. I should lose it. It is a good rule.
posted by flarbuse at 8:36 AM on February 2, 2008 [8 favorites]


The solution to the attorney-client privilege dilemma.
posted by papakwanz at 8:37 AM on February 2, 2008 [1 favorite]


Then why did Paul Belmondo's attorney give those incriminating tapes to the police? Because it was Canada?

(It's Bernardo, not Belmondo - years of Toronto Star articles burned his name into my head)

I think the key was that the tapes were physical evidence and did not fall under the attorney-client conversation privilege. The differences in Canadian law may also have been a factor. Finally, I recall reading that the lawyer may have actually participated in the concealment of the tapes also - he ultimately faced criminal charges and disbarment for his actions, if memory serves.
posted by theorique at 8:50 AM on February 2, 2008


If I represented someone who divulged to me that he had committed a murder that someone else was serving time for, I would immediately call the Bar, turn in my license, and contact the detectives and prosecutors working on the case.

But would you really? A verbal "confession" by your client -- one which they would disavow later -- has very iffy chances of overturning a conviction. And for good reason.

Presumably the case against the person now serving time consisted of a lot more than someone else failing to confess to the crime. Wouldn't you want to consider that evidence, and consider whether your client was lying to you?

People say a lot of things for a lot of reasons. Hell, your client may be "confessing" to the crime to you specifically hoping that you'll interfere in the rightful prosecution of a friend.
posted by tkolar at 9:39 AM on February 2, 2008 [1 favorite]


russm: Mr. President - as I understand US law, failure to hand over keys to encrypted subpoenaed documents will get you jailed for contempt of court. assuming my understanding is correct, that certainly looks to me like a criminalisation of a failure to incriminate oneself.

The difference is that the keys don't constitute testimony against oneself. Simply handing keys over doesn't communicate, "yeah, I did it." The contents of the documents might be damning, but the defendant himself wasn't required to confess. The 5th amendment doesn't provide a blanket right to disrupt one's own prosecution in any way possible.

A prosecutor has long generally been able to compel the production of physical things that existed before the prosecution commenced (physical things produced in response to the prosecution may be protected by a privilege).

Bulgaroktonos - do you have a reference to that Vermont decision? if "properly requested evidence" includes the contents of your brain, how does it not include "were you at the kwik-e-mart on wednesday night?" or the responses to similar questions?

The short answer is that "properly requested evidence" will never include the contents of the defendant's brain. There are roughly four forms evidence can take: physical (e.g. a , documentary (e.g. financial statements), demonstrative (e.g. a photograph of a crime scene), and testimonial.

The contents of the defendant's brain are testimonial, and it's this last category that receives the bulk of the protection.

qvantamon: Lying in the court is perjury, which is a crime. In this particular story, the lawyer helped the client commit perjury, and committed it himself.

I don't see in the article any indication that anyone lied in court. It's quite possible to represent a guilty defendant, and win, without ever claiming that the defendant is innocent.

Remember, the defense doesn't have to prove anything. To win, the defense just needs to convince the jury that the prosecution didn't prove its case beyond a reasonable doubt.
posted by Mr. President Dr. Steve Elvis America at 9:49 AM on February 2, 2008


i had an attorney tell me once, 'GAH! don't tell me you did it! i can't represent you if you tell me that!'

now ... that was in a traffic case. and the attorney in question was a law professor, not a practicing litigator. so maybe it's different in *traffic court* than it is when you're dealing with homicide. i should hope that if that difference exists, it would be more stringent on the side of the violent crime than the stupid speeding ticket.

plenty of attorneys walk away from clients when their morals (or whatever they have) are compromised. at least one of oj's attorneys took a walk rather than represent him.

there is no justification for allowing something like this to happen. none.

and damn dirty ape, while perhaps everyone is a lawyer, iamal and i don't know what the first rule--nor the second rule--of law school is. but there has to be 6 ways to sunday out of putting an innocent man in prison under these and just about any circumstances.

while the spirit of american law might be pure, the practice is certainly tainted. i have an acquaintance who's a lawyer of the ambulance chasing variety. i asked him one time if some of his cases didn't maybe cause him a bit of sleeplessness now and again. 'it's a game,' he told me, 'and they make the rules. if i can outsmart them at their own game, why should it bother me?'

i don't know about you all, but it bothers the hell out of me.
posted by msconduct at 9:50 AM on February 2, 2008


In my practice as an attorney, if a client hires me to represent him in a criminal matter, my first question is always, "What happened?" I have never understood attorneys who say "don't tell me if you did it or not." Whether my client is guilty or not is not up to the client or me. The client doesn't know whether he is guilty. The client may know he did something that may expose him to criminal liability, but he does not know the elements of the offense, he does not know the state of mind that must be shown to convict him of the offense, and he does not know the various legal debates that may concern the definition of the offense and the state's burden of proof with respect to the offense. My attitude is that my client is not guilty unless he chooses to admit his guilt in a formal proceeding before the court, or is convicted by a jury. So I am perfectly comfortable knowing exactly what happened, and then going into court and zealously representing my client.

I have often considered the lawyer's role to be that I am my client, except with a legal education, a law license, and the ability to distance myself emotionally from the facts of what happened, so that I can apply intellect and reason to the client's defense without being muddled by mental turmoil that attends a traumatic event. The lawyer's job is to make decisions in the client's best interest without being clouded by the various fears, regrets, embarrassments, and irrelevancies that cloud a client's mind when something bad happens. I have had lots of clients come to me, admit they are guilty, and then after I hear their story, I explain to them why they are not actually guilty under the statute. A classic example of how a client's mind is clouded is that he thinks that it is incriminating to refuse to speak to the police at the scene of his arrest or during the hours following it. He doesn't understand how many criminal cases are sealed tight based on the words of a defendant.

So, to those who think attorneys have an obligation to share a client confidence with authorities when it might let an innocent person out of prison, I think you are misunderstanding a lawyer's role. It is not up to us to decide whether our clients are guilty or not. We perform a systematic role, of testing and challenging the state's proof against one person --- our client. The state has the burden of proof, meaning that it must prove beyond a reasonable doubt that a crime was committed and that this particular defendant committed the crime. If the state fails, the presumption of innocence prevails. It really doesn't matter whether we think our clients are guilty or not; whether we think our clients are guilty or not is actually irrelevant to our role. If you believe the attorney has any obligation beyond his obligation to test and challenge the state's proof against a single client, you don't really understand the role of the attorney in the U.S. legal system.
posted by jayder at 10:33 AM on February 2, 2008 [9 favorites]


jayder, I remember (vaguely) hearing (probably on a TV show) that ethically and professionally (I don't know about legally) lawyers must mount a defense consistent with what they know to be the facts. That is, they cannot subborn perjury. Thus, if a client tells them something that doesn't allow them to mount a vigorous defense, they are hamstrung. Is this true? In other words, if your client tells you that he stabbed the deceased, are you enjoined from a defense that tries to pin it on someone else? Must you then try to defend showing that the defendent may have committed the act of stabbing, but it wasn't murder for some reason?
posted by Mental Wimp at 12:24 PM on February 2, 2008


You can make whatever argument you want as an attorney. If your client tells you a version of what happened, you can still argue whatever you want. What you can't do is allow your client to knowingly perjure himself. So if my client tells me he did it, I cannot allow him to testify and say that he did not. If I did that, I would be knowingly allowing my client to commit perjury. That is why lawyers will tell a client they don't want to know what happened. It could automatically prohibit them from allowing their client to testify.

I have had a client change his story to me once he figured out what would be a better defense. As he had previously told me the truth, I could not allow him to testify to his new version of the story. I told him something like this:

"An attorney is not allowed to permit his client to testify to something the lawyer knows is not true. I know that what you want to testify is not true. If you had a lawyer who did not know this, that lawyer could allow you to testify to that story. You are allowed to hire a new lawyer."

And he did.
posted by flarbuse at 1:01 PM on February 2, 2008 [3 favorites]


It is better for ten guilty men to go free than one innocent to be jailed.

But we don't have to choose.

(I have to say that I side with the lawyers in question.)
posted by klangklangston at 2:07 PM on February 2, 2008


I thought that attorneys were officers of the court, and as such were beholden to report it if they could be liable in some way (e.g. harboring a felon). Wouldn't the same rule apply, where they could be charged with obstruction of justice, concealing evidence of a felony, or interfering with a police investigation, or something?
posted by spacely_sprocket at 3:18 PM on February 2, 2008


The difference is that the keys don't constitute testimony against oneself.
vs.
The short answer is that "properly requested evidence" will never include the contents of the defendant's brain.

This is my point, and my question, and the reason I'm interested to see a reference to the case Bulgaroktonos spoke of (assuming that the passphrase that decrypts something exists nowhere other than in my brain).

of course this is all academic for me, living in a jurisdiction that has legislated that such passwords are not protected and has a specific offence on the books for not handing them over to the police when asked.

</derail>
posted by russm at 3:24 PM on February 2, 2008


I thought that attorneys were officers of the court, and as such were beholden to report it if they could be liable in some way (e.g. harboring a felon). Wouldn't the same rule apply, where they could be charged with obstruction of justice, concealing evidence of a felony, or interfering with a police investigation, or something?

By the time the defendant is in court, the police investigation is over. IANAL, but I don't think the attorney is compelled to tell the court anything in particular about their client. AFAIK, the attorney's duty is to the client first in the US legal system, although the attorney must follow a code of conduct and remain in good standing with the bar in order to practice law. Defending a client who may have broken the law is a major role of defense lawyer, in my opinion. If defense attorneys were obliged to convict clients on their own behest, or only represent people they are sure are clear of any crime, knowing certain information about them, then how could a guilty person get a fair trial? I think the legal system's role is also protecting the rights of the guilty, meaning everyone has the right to a fair trial, not just those who are truly innocent. The court's job is to make that decision, and the attorney has to play a role within that setting. If you can't isolate the accused's representative from the task of making a decision about a client's legal standing (which, as has been mentioned by jayder, is not really the attorney's role), then you make it difficult for the system to work. It's up to the judge and/or jury, not the lawyer.
posted by krinklyfig at 4:43 PM on February 2, 2008


Mental Whip,

There's a ton of misinformation in this thread and I can't correct it all, but I'll answer your question, which is an important one.

A lawyer is forbidden from suborning perjury (i.e. he can't put someone on the stand to say something he knows to be false), but he can argue for a theory that he knows to be false.

Here's an example. Assume your client tells you he murdered the victim at around 11:00PM. The client knows this because he checked his watch, which he knows was accurate on the night of the murder. The client was with several friends at 10:00PM, so the lawyer wants to argue that the murder occurred at 10:00PM to give his client an alibi.

The lawyer can't call his client to the stand and ask him to say that he was with friends at 11:00PM. The lawyer can, however, cross-examine the state's medical expert to get him to say that estimating time of death within an hour isn't possible and that it's possible the murder happened at 10:00PM. He can cross-examine the sole witness to the murder, who says it happened at 11:00PM, by asking questions tending to prove he was drunk and doesn't remember the time accurately, or that he shouldn't be believed because he has a prior conviction for embezzlement. The lawyer can also put on witnesses to truthfully testify that the defendant has a good character and wouldn't be likely to murder someone and that he had never before visited the area of the murder.

The critical difference between calling the client to the stand to lie and doing these things is that, in the former, the lawyer is affirmatively putting false testimony before the court while in the latter, he's testing the strength of the state's case.
posted by saslett at 4:46 PM on February 2, 2008 [1 favorite]


What if a lawyer puts someone on the stand, telling him not to tell only the truth, and he says something false instead. Does the lawyer then have a duty to point out the falsehood?
posted by grouse at 5:25 PM on February 2, 2008


This is my point, and my question, and the reason I'm interested to see a reference to the case Bulgaroktonos spoke of (assuming that the passphrase that decrypts something exists nowhere other than in my brain).

The passphrase isn't the evidence, though. The encrypted documents are the evidence. The prosecutor isn't planning on showing the passphrase to the jury.

When a defendant is required to disclose a passphrase, he's not being required to admit any fact (except maybe that he knows the passphrase).
posted by Mr. President Dr. Steve Elvis America at 5:27 PM on February 2, 2008


So if my client tells me he did it, I cannot allow him to testify and say that he did not. If I did that, I would be knowingly allowing my client to commit perjury.

Consider this scenario. A client hires you, and tells you one thing when you first meet, then tells you another story, inconsistent with the first, a few months later, before trial. You've heard two accounts from your client. What do you do? Must you assume that the more-damning version is the truth, and withdraw from representation when the client tells you a version more favorable to himself?

I don't consider it my job to ferret out the truth from my client. My client may have lied to me when he first came to my office, and is telling the truth on the stand.

It's not my job to determine my client's credibility or truthfulness.

Someone upthread asked what an attorney is supposed to do when a client gets on the stand and testifies in a way that the attorney knows to be false. I believe the attorney is not supposed to ask the client specific questions, but is required to allow the client to testify in a free-form narrative unprompted by the attorney's questions.

My problem with that mandate is that it clearly signals to the court that your client is lying, and I consider that a breach of your obligation to a client. Attorneys cannot be expected to know what a client did or did not do, unless the attorney was personally there when it happened.
posted by jayder at 6:16 PM on February 2, 2008


I really have to defend the "absolutism" of client-attorney privilege. If clients don't know without a doubt that you as their lawyer will keep their secret, they won't tell you what you need to know. Now if we make an extremely slim exception for cases like this and some other circumstances, people aren't going to understand that they can tell their lawyers most things but not a few things, they are just going to think this attorney-client privilege thing isn't for real.

I feel this is most analogous to medical records. They are technically sealed, but for a variety of reasons you often have to turn them over. To be barred in a lot of states you have to go through a long vetting process if you've ever had mental health issues (some only for hospitalization however). This is also true for a lot of jobs. I personally know at least two people I've gone to law school with who have put off getting therapy and antidepressants because they didn't want to have to disclose it on the bar, while I personally think they were overreacting, people don't take chances with this type of thing. And I can tell you that one untreated person with a severe mental health issue is a lot more dangerous than ten people under proper medical care, who can actually be honest with their doctors about their condition. If there is any chance whatsoever that a lawyer is going to divulge what you tell them, you just don't tell them. And it isn't like you can go to another lawyer to get advice about what you can tell them, so it's a catch-22.

It's very easy to think there is some quick fix to these types of situations, but any rule you make is going to have a massive chilling effect because it's such a sensitive issue.
posted by whoaali at 8:09 PM on February 2, 2008


The other question to ask here is how they managed to prosecute this guy "beyond a reasonable doubt" when he didn't actually do it.
posted by BrotherCaine at 12:15 AM on February 3, 2008 [2 favorites]


saslet

Hmmm, "Mental Whip". I like it.

Thank you for the clarification. It helps. One minor point that you didn't cover is whether the attorney could introduce a witness who says that he or she saw the murder take place at 10pm, knowing that to be false. Not that the witness is lying, but just knowing that the witness is wrong. Could such a witness be introduced ethically? (I'm not asking whether an attorney could do it, because I know that most would.)
posted by Mental Wimp at 11:08 AM on February 4, 2008


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