Jurisdiction.
Ta.
*location?
It’s about the same in the States, although we also have a procedure called the noisy withdrawal. If the client won’t let you quit, you can tell the judge you cannot competently defend the client. He may let you withdraw over the client’s objection or he might not, but this is a signal that judges generally understand, so it’s not great news for your client.
One thing that hasn’t been covered yet is the idea of the lawyer in his private life. Although controversial, many codes of professional conduct also cover the lawyer’s activities outside the practice of law and prohibit lying or sharp dealings generally, even if they’re directed at someone in a totally separate business transaction.
–Cliffy
It’s OK, Dex. I got it.
I’m curious about the private time thing, too. At what point does the lawyer and his profession end and the private citizen and his obligation to his fellow citizens begin?
Thanks Atticus, but I did not understand your remark about withdrawal. You now know that your client has been to the victim’s house-he has stolen an item from it, proving that he has been there. Does not DISCOVERY dictate that you share this information with the prosecution? How do you discharge your duties to your client , and at the same time report what you know to be true (ie. that your client has committed a murder)?
Criminal defendants are not subject to that kind of discovery. The Fifth Amendment prevents the state from compelling an individual to incriminate himself.
But Ralph, you DO NOT have a responsibility to report that your client did in fact commit the murder. You have a responsibility NOT to report it. You have a responsibility to defend your client. However, as an officer of the court and a human being, you also have an obligation NOT TO LIE. So you couldn’t ethically get up in court and say “Ladies and Gentlemen of the jury, my client did not kill the victim.” However, you could get up and say, “Ladies and Gentlemen of the jury, the prosecution has not provided sufficient evidence to convict my client, so you should therefore accquit him.”. Also, if you know that your client intends to commit perjury you are obligated to attempt to prevent that. However, everyone has a right to defend themselves, so the defendent can testify if they wish…however you cannot ethically ask them questions. You have to basically tell the judge that you think your client is going to commit perjury, and he’ll allow the defendant to testify but won’t allow you to question him in the normal fashion. Source: Law and Order. Or was it The Practice? Anyway, one of those shows. And we had a thread about it last year.
Anyway, as far as I know, the defense has no obligation to provide damning evidence to the prosecution, although the prosecution has an obligation to provide exculpatory evidence to the defense.
A more thorny problem is the part about framing another person. If an attorney has good reason to believe that an innocent person is likely to be convicted of a crime they have good reason to believe their client commited, what is their ethical obligation?
In Ralph’s hypo, the client is NOT being charged - some other guy is. So the questions about perjury and truthfulness to the tribunal never arise.
Correct. While most jurisdictions have some sort of reciprocal discovery rules in the criminal context, they do not extend to inculpatory evidence. Most every jurisdiction requires advance notice of witnesses that will testify, any alibi that may be claimed, and the like, they cannot require that evidence be supplied to them, especially if that evidence is inculpatory.
To shut up.
Any effort to reveal the actual innocence of the unfortunate falsely accused person would potentially redirect attention at your client, whose interests you are bound to zealously protect. So you trust that the system will do its job, and shut up.
Except if you’re aware of a future crime. I would point out that while the larceny of the property the client took from the house is a completed crime, the possession of stolen property is a continuing crime. That is, each moment that the client keeps the property he took from the house, he continues the crime of possession. Therefore, you may be off the hook ethically in reporting this crime.
- Rick
I’m too lazy and too busy (always a bad combination, please accept my apologies) to do the proper quoting/coding, but I’ll answer this part:
While the two locations are different, there are similar provisions in the US. These rules of professional conduct regarding lawyers are found in the Model Rules of Professional Conduct found here: www2.law.cornell.edu/cgi-bin/foliocgi.exe/RPC-OVERVIEW
(note: the site is down since I last checked)
Each state has its own jurisdiction of ethical laws, but they are based largely in part on the Model Rules, drafted by the American Bar Association. In large part, particularly the sections regarding attorney-client privilege. Where I practice, I must not aid and must report a crime that will be reasonably committed by my client.
The ethical rules also do prevail in my private life, for instance, if I witness a fellow attorney committing a crime (I do not believe it’s simply regulated to violations of ethical obligations), I must report him to my disciplinary commission, even if I witness this out of my jurisdiction (the classic example is a boat out at sea in international waters).
Personally, and with all due respect, I would disagree with this. First, I would argue that possession of stolen property is a completed crime - it functionally happens in the present, as opposed to happening in the future. Secondly, I would think that the value and the importance (I don’t have a better way to describe this) of the Attorney-Client Privilege far outweighs the culpability of a lessor included offense, i.e. the crime of possession is included in the larceny charge. I would argue that the client, looking for the best, zealous representation confided his trust in his attorney about the underlying crime, larceny (or robbery as the fact may yield). As part of his defense, the defendant, along with the attorney, contemplates giving the item back in hope of dropping the charges.
But, then in an astounding breach of trust, the attorney blurts out that his defendant actually has the stolen item. That information alone (assuming the prosecution don’t already know, or can’t already prove) is enough to seriously damage client’s defense, and if not seriously malign the ACP.
So, you are saying…you know your client is guilty, you know that he intends to frame another (totally innocent person), and you have evidence that your client was in the murder victim’s house.
And your zealous defense of lawyer-client confidence PREVENTS you from seeing that the guilty party is caught!
Great, now I know why people like OJ Simpson pay lots of money to lawyers! :smack:
Even if I concede that possession is not a continuing offense, larceny certainly is. In my neck of the woods, the matter is clear: larceny is a continuing offense. See Dunlavey v. Commonwealth, 184 Va. at 525, 35 S.E.2d at 765 (1945). A quick look at other jurisdictions confirms this, although I’m certainly open to hearing about a jurisdiction that does not conform to this rule. But as long as the actor remains in possession of the stolen property, the crime of larceny continues.
To the extent that the client in his confession indicated that he intended to keep the stolen item, the attorney is entitled to view this as a future crime.
Well, the attorney is not required to report the offense. He MAY, without ethical penalty, do so. It’s up to the attorney to decide if the situation merits revealing the larceny. In this case, with an innocent man being convicted for the crime, I’d argue that the scales come down on the side of revealing the crime. Your mileage may vary, but htere seems to be no serious contention that the rules of professional responsibility do not forbid such revelation.
- Rick
“Ta” is an idiom, not used in American English I know.
It means thankyou.
Hmmm. This seems strange to me, Bricker. Suppose your client tells you that they robbed a bank. That statement is protected, and you are obligated to keep that confidential, and to zealously represent your client. But suppose they tell you that they robbed a jewelry store, and have the loot stashed under a matress in their spare bedroom. Since the possesion of the stolen goods is a continuing crime, would that override attorney-client privilege? Or am I misunderstanding?
I believe Bricker is saying that it does not override the privilege, except perhaps in a case where an innocent person would otherwise be convicted. I think all the lawyers (including me) agree with the first part of this statement, but not everybody agrees with the second part.
The privilege belongs to the client. Even in a case in which the lawyer may ethically reveal information, the evidentiary privilege may still apply.
Technically speaking, the attorney for the jewel thief may view this crim eas a continuing one. If he reveals it, however, it’s doubtful that the evidence could be used against the thief, because the evidentiary privilege still applies. And because the disclosure is not mandated, and because the disclosure would have little or no effect - other, I suppose, than the return of the jewels - I cannot imagine a lawyer making the choice to reveal that particular confidence.
But I suppose a lawyer in that position technically could squeal and still save himself from Bar discipline by pointing out the future crime exception. Certainly the disclosure is not in any way, shape, or form required.
- Rick
If we think our client intends to actively defraud the court by framing another person, that might fit into the serious and probable future offence category and thus remove confidentiality.
If not, if your client is merely happy to sit back and watch the police stuff up their invstigation, then confidentiality does not disappear. In this situation, you have a duty to your client (to shut up) but there is no duty to the court to override this. It’s not your duty to make sure that everyone is doing their jobs correctly.
I realise it’s a dilemma, but believe me, you want your lawyer to zealously protect your confidences, if at all possible. Imagine that you had done something wrong, which you believe may have been a crime. Would you go to a lawyer if you knew that everything you said would be on the record, and the lawyer could, or must, take it to the court? They wouldn’t really be your lawyer any more - they’d be looking out for the interests of the public / the state alone. It’s only a short step from that scenario to Star Chambers and show courts.
Hey, Star Chamber wasn’t all bad! 
I’ve had occasion to cite approvingly a couple of Star Chamber reported decisions!
But getting back to ralph’s point - if the client is actively taking steps to frame someone else, I would think that would be the future crime of obstruction of justice (or equivalent), warranting disclosure. And, even if the client is no longer taking any active steps, just relying on what he’s already done, wouldn’t it be arguable that the obstruction of justice will occur in the future (at the trial of the guy the client has set up), and therefore comes within the future crime principle?
No. The question is simply when the crime is completed - and it’s completed the moment he plants the evidence/fakes the photos/whatever. The mere fact that it’s discovered later, or that the effects of the crime come into full bloom later, does not change this fact.
- Rick
Suppose that you are Johnny Cochran, and fater the aquittal, your client O J Simpson cangradulates you…and adds the following"
-“You know what Johnny? That bitch had it comin to her…and that Ron (expletive deleted) was a candy ass. His daddy (Mr. Goldman) bettah watch his ass…i’m gonna burn him!”
What do you do? Mr. Simpson has expressed his wish to do away with Mr. Goldman. are you required to report this to the authorities? :smack: