In a situation like this - can you go to a judge, and ask for a second opinion without breaking the privilege?
We have confidential ethics hotlines through our state bar associations that we can call to get opinions without giving any details about our clients.
It’s also acceptable to get a second opinion from other attorneys based on hypothetical facts, and that happens pretty frequently. “Let’s say I have a client who told me…”
In the Ontario rule, it is suggested “where practicable” that a lawyer get a court order justifying disclosure. Obvioulsy, if the would-be client is proposing to murder someone tomorrow, that will not be “practicable” due to time constraints.
This is fascinating.
I wonder if cops have them. /not sarcasm
Florida is unusual in requiring disclosure to prevent the commission of a crime:
Not that I’ve ever heard of. Several major city bar associations in Ohio have attorney ethics hotlines; I don’t believe the Ohio State Bar Assn. does: http://www.clemetrobar.org/Committees/Ethics_Professionalism/
Most law enforcement agencies of sufficient size have their own “in house” counsel. I doubt taking ethics questions from officers in the field is a frequent occurrence, though.
There are two ways that an attorney can disclose information. Voluntarily, according to professional ethics, or compelled to, as a sworn witness in a court of law. Which type are we talking about here?
Let’s say the client asks the attorney a “what if” question, and is later arrested and charged with, say, assault with a deadly weapon, but no murder occurs. Can said attorney then be called as a witness for the prosecution, and be compelled to testify under oath about the conversation he had had with the client, which would be relevant to establishing the defendant’s intent? Or does he have confidentiality protection? There is clearly no imminent crime about to take place, with the defendant already in custody.
If the client’s intent has not produced an arrestable or indictable attempt, conspiracy, or other inchoate offense, what do the police actually do? After all, simply intending to commit a crime (“thoughtcrime”) isn’t a crime - it doesn’t become criminal until some substantial step has been performed toward that end. Do the police increase surveillance of the suspect, e.g. by increasing drive-by patrols, running background checks behind the scenes, interviewing friends and relatives, etc., looking for a pretense to arrest? Do they write a letter to the indicated victim saying, “So sorry to bother you, but John B. Robinson told his attorney he wants to kill you. We aren’t doing anything now because he hasn’t committed a crime, but we wanted to let you know.”?
I think the notion is that, if the information is no longer confidential, recorded in a police file, the would-be criminal would be deterred from actually committing the crime. Not that the cops would arrest him or her, necessarily.
After all, this would-be criminal is evidently the careful type, who wants legal advice so he or she can get away with it before attempting it. Telling this person that the cops know all about his or her plan effectively ruins the plan - at least, the “getting away with it” part.
At what point does the man explain that he intends to kill his wife next month? Is this on the phone, when setting up the legal consultation? Or is this at the beginning of the 4-hour consultation?
Either way, I’d recommend (d) play along with the guy, but get wired up by the local cops so that they have a good recording of the consultation.
If the guy first mentions killing his wife in advance of the consultation, the lawyer has opportunity to arrange this before the guy shows up. If he first mentions it at the consultation, the lawyer can say this wasn’t something he was prepared to give advice on, but that he would be happy to do further research and give advice at a subsequent consultation.
Setting up potential clients for law enforcement stings is probably not the best way to promote your criminal defense practice.
For something less serious than murder, I can imagine a good defense attorney, as soon as they catch the slightest beginning of a whiff of where things are going, telling the client to stop talking, and never discuss plans for future illegal activities. That is, after all the best situation for the attorney: they can still give good advice and representation to the client, while avoiding any ethical issues.
[Obviously there are a lot of different situations, from a mob lawyer who’s OK with what’s going on but needs plausible deniability, to one who is about to try and convince his client that sending threatening letters to the DA is really not a good idea, to one who is pretty sure his client will continue possessing illegal drugs but can’t do much about it. ]
Psych eval, possible warrants.
I can tell you what you’re supposed to do: You’re supposed to give no advice in furtherance of the commission of a crime. Arguably, you are also supposed to warn the wife that her husband wishes to murder her (compare Tarasoff v. Regents of the University of California). Communications of this type are not protected by the attorney-client privilege.
As to whether a criminal lawyer would actually do this, I couldn’t say. I would, but I have the luxury of not practising criminal law. The situation came up in 1985, when Paul Gotti asked his lawyer, Bruce Cutler, for advice of this type (posed, unconvincingly, as a hypothetical). The judge disqualified Cutler from representing Gotti at the subsequent criminal trial and scathingly wrote of Cutler as the in-house counsel to the Gambino family, but Cutler did not seem to suffer any other consequences.
Wikipedia has more information on both the Tarasoff case and Bruce Cutler.
My thought exactly.
This brings up a question about lawyer’s offices:
Are they commonly equipped with concealed recording equipment, and are client conversations routinely recorded?
For every 1000 boring consultations, maybe there is one worth all the erasing/over-writing?
No, this never happens. It would be a violation of the lawyer’s duty to his or her client to tape the client surreptitiously.
In some jurisdictions, it would also be a criminal offence, since in some places, it’s an offence to record a conversation without the consent of all the participants.
So it comes down to lawyer’s word vs. the accused’s.
Lawyer: He told me he was planning to murder his wife!
Client: You’re crazy - I was researching a book, and told you so. I’m a published author and my book has 10,000 pre-sales.
Cop: OOO_KKKKKK?