Attorney-Client priviledge

Imagine I’m on trial for murder. There isn’t a whole lot of evidence, my attorney has been doing a great job, and things are looking for me.

Then I revealed to my lawyer “And the funny thing? I really killed her!”

What would or could the lawyer do?

I asked my SO, who happens to be a criminal defense lawyer, about this one.

I am told the big issue with this (they won’t do anything or tell anybody if you tell them you did it) is that they can’t knowingly put you in the position of lying on the stand. So if a lawyer knows that you did, indeed, do it, they can’t ask you any questions where you would have to lie. This makes even putting you on the stand problematic.

In a case like the one you’re talking about, the best strategy for the lawyer would probably be to not let you up there at all – why potentially screw things up for your case if it looks like you’re winning anyway?

And I’m told it would probably really screw with the lawyer’s head if they watch somebody they know is a murderer go free largely because of their work.

Probably true in most cases, but it’s your client’s decision to take the stand or not. You can advise, but if he wants to testify, he gets to.

Now if you know your client is going to lie on the stand, you don’t have to put him on. You can quit. (And of course, there are less drastic steps you can take if you have confidence that your client won’t lie.) Well, you can quit if your client lets you. If the client doesn’t want you to quit, but still demands to testify, and you believe he’s going to lie, you can petition the court to grant your request to quit for reasons you cannot specify. This may be granted, but even if it isn’t, courts and prosecutors generally understand what this means, so explaining to your client that you have to do such a “noisy withdrawl” may be enough to put him in line.

If you think your client won’t lie, you can put him on the stand. If he then does lie, you should later try to convince him to get back on the stand and correct his erroneous testimony. If he refuses, again you can nosily withdraw.

–Cliffy, not a criminal lawyer

And if the client insists on testifying, despite planning to commit perjury, the client can testify in the narrative. The lawyer doesn’t ask questions, thus not suborning the perjury.

When I was a trainee lawyer I sat in on a first interview between a very senior lawyer in a very specialised field and a new client. Before the interview started, all we knew was that the client had been hit with a compulsory form of notice from a regulatory authority requiring the client to turn over large amounts of documentation. The regulatory authority in question was responsible for prosecuting breaches of a particular highly complex and technical statute. So complex that many unsophisticated business people probably wouldn’t even have a great deal of detailed awareness of what did and did not constitute an offence under the statute.

The very senior lawyer greeted the client, then proceeded to give him a lecture in as simple terms as possible about what did and did not constitute an offence under the statute. The client kept trying to butt in and describe what conduct he’d been engaging in, but the very senior lawyer kept cutting him off and halting him every time he tried to speak. At the time I couldn’t see why the lawyer was being so adamantly rude.

Then at the end of the lecture the lawyer said, “OK, so let’s have a little break for coffee and then perhaps you might want to tell me some things.”

The penny dropped with me. Wise old lawyer, that.

I know it’s up to the client whether they testify, but I can see a lawyer strongly advising them against their doing so in some circumstances. I should have said it, I did know that, I maybe overstated it a bit.

And of course there are ways around it, but it does put a lawyer in a difficult position.