Lawyers and Privilege

So a guy shows up in your (attorney’s) office. He says, “I really hate my neighbor and have a plan to make him have an accident that I want you to review…” You of course, ask the gentleman to leave, and provide no advice.

About a year later (it can be a year and a day if that makes any difference), you pick up the newspaper and see that the man’s neighbor has died in a freak accident that seems familiar to you. According to the paper, the police have said it was a complete accident. Can/do you break privilege?

(Need answer quick. (j/k))

Yes, the lawyer can go to the police and tell them, and it’s not breaking privilege.

Privilege does not apply to attempts to seek legal advice about future crimes.

Since the man showing up in the office did not hire/compensate the attorney, he is not a client and I would suspect that no privilege is applied. More concerning is that the attorney, as an officer of the court, did not warn authorities of this non-client’s intent to harm his neighbor.

It is absolutely not privileged.

Privilege can exist without any money being exchanged. The question is whether a person has sought legal advice and the lawyer has given it; that can create a solicitor-client relationship. That’s why lawyers have to be very cautious at cocktail parties when someone comes up and starts talking about their legal problems. :stuck_out_tongue:

As for going to the police, it’s a judgment call. Was the person just blowing off steam, or was it serious? Would need a lot more information than just in the OP’s hypothetical.
And, none of this is legal advice, but simply to discuss aspects of the legal system which are of public interest.

Which is WHY the Straight Dope discourages questions asking for legal advice here. :wink:

Is a solicitor-client relationship and/or giving legal advice absolutely necessary? What if the person has described their legal problem, in the expectation or hope of receiving advice (let’s assume a formal meeting in the lawyer’s office), and the lawyer declines to take him as a client, and so provides no legal advice?

(Obviously, in the OP’s case, this question is moot, since there’s no privilege around future crimes, regardless).

Or, in dialogue form:
“Can you help me? I need a lawyer”
“Well, I’m a duly licensed lawyer. I charge $200/hr. If that’s OK with you, tell me what the problem is.”
“Sure, the problem is that I killed my brother in law”
“Oh. Well, I’m a tax lawyer, and so I will not take that case. Good day.”

Is that confession admissible?

I’m going to guess -
The crime is not in the future.
The person told the lawyer this information on the expectation that he would provide legal help.
So… privileged.

(If he hadn’t been a lawyer, if the fellow had not expected legal help, he would not have confessed - so no further harm is done if the confession is confidential. The police are no further ahead or behind with or without this confidential encounter.)

Presumably that lawyer would now have to recuse himself from assisting a wrongfully accused person about that crime?

I am not a lawyer, but your sample conversation would be privileged.

And in fact, the lawyer did provide professional services–they listened to the problem, and professionally came to the conclusion that they were not qualified to help the client, and would have to refer them to a colleague who was qualified.

I’ll answer based on the ABA’s Model Rules of Professional Conduct here: Model Rules of Professional Conduct - Table of Contents

This isn’t really the law anywhere but it’s a good guideline about the rules which may apply in your jurisdiction. For an answer relevant in your jurisdiction, consult with an attorney or the bar organization there.

It certainly wouldn’t apply to the OP’s crime. Model Rule 1.6(b)(1) allows a lawyer to reveal a client’s confidential information if the lawyer “reasonably believes necessary… to prevent reasonably certain death or substantial bodily harm.” Other future crimes are also carved out of the privilege obligation by the model rules. Generally, a “crime crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another” loses privilege protection.

A lawyer can have clients who don’t pay him or her. Payment is irrelevant to determining whether there is an attorney-client relationship.

Note that the model rule says that a lawyer “may” reveal the confidential information as I noted, not that he or she must reveal it. Perhaps in your particular jurisdiction under the OP’s facts, a lawyer would have to disclose the information but I don’t think that’s the general rule for lawyers across the U.S.

No. This isn’t about a future crime so that exception to the privilege responsibility doesn’t apply. Furthermore, there’s another carve out to privilege protection “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.” Model Rule 1.16(b)(3).

In your hypothetical, it wouldn’t apply because the client had already committed the crime before he came to you. He didn’t rely on the lawyer’s advice when he committed the crime. Model Rule 1.18 protects even “prospective clients” like this one before the lawyer has accepted them as clients (“Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.”).

I’m simplifying quite a bit here but Rule 1.9(c) says that you treat former clients like current clients (unless the previously confidential information is already publicly known) and you treat prospective clients like former clients. Ergo, you treat prospective clients like current clients for purposes of privilege. You couldn’t disclose that confession.

Well, I for one, will take your advice to heart.

I didn’t foresee the question of whether he was actually a client having bearing. What prompted me to ask was while reading the Wikipedia (the font of all completely accurate knowledge) article on attorney client privilege, I saw this: “The crime-fraud exception also does require that the crime or fraud discussed between client and attorney be carried out to be triggered.”

That made me wonder how that worked in real life. For example, if the attorney tells someone, but it turns out that the guy was three states over when the accident happened, and it was just suspiciously similar, did the attorney get into trouble, or risk getting sued by the client? But, what I am hearing is that the attorney could freely tell from the moment the guy asked the question, contrary to the Wikipedia assertion. Is that correct?

The privilege applies, or does not apply, regardless of whether the crime was committed by the client (or committed at all). The nature of the communication is what makes it non-privileged, not any future event(s).

Wait…does that mean when Saul Goodman insisted that Walter White and Jesse Pinkman should pay him $5 apiece so lawyer/client privilege would apply, that part was actually unnecessary? TV lied to me???

IF you paid the lawyer in question especially if you had a receipt, it could go quite a ways towards saying I have engaged this attorneys services.

My favorite curiosity was in the Sopranos when Tony and carmela are getting divorced. Tony goes out and has a paid 1 hour consultation with all the big heavy hitter divorce attorneys in town. All then decline to represent her as they already have inside information on Tonys side of the situation.

Would something like this actually work or does said lawyer have to actually agree to represent him for it to reply?

Yeah, it’s unnecessary. I always chose to interpret that scene as Saul doing something that sounded lawyerly as a way of winning them over, even though he knows it doesn’t really matter.

Actually, I’m glad I found this thread. Because it brings up an interesting hypothetical legal question I have about the attorney-client privilege.

First of all, I already knew the privilege is absolute, for things done in the past–not the future. But that brings up an interesting hypothetical situation.

You go into your lawyers office. And you say, “By the way, I just killed someone in your waiting room. Better have your secretary clean up the blood”.

Is that privileged? It theoretically happened in the past. But it also just happened. Plus, it may arguably be a crime in progress (if the blood still needs to be cleaned up). So what it the ruling on all of this?

Also, as long as I’m on the subject, what do lawyers do when they think their client will someday re-offend? They can’t divulge what was said about their past actions. But still. And what about the injustice that someone else may suffer for a crime they didn’t commit, but at the same time they actually know their client was responsible? What happens then?

And please forgive me for taking this discussion in another direction. But I have wondered about these things for some time now.


Just to nitpick, the question is more nuanced than simply giving and receiving advice. It must be done in a situation that a reasonably prudent client would believe that they are in an attorney/client relationship.

If a guy asks me at a cocktail party if he can get in trouble for beating his kids with a spiked belt, and I say “yes,” then no relationship has been formed. It is no more reasonable for him to believe that I am his lawyer than for me to believe that the guy I ask about my sore back is now my doctor.

I know that attorneys get nervous about this, but a read of the applicable rules show that there is really no danger in answering simple questions at parties or on a message board.

If I were an attorney concerned about passing out casual message board advice, the thing I’d be most circumspect about would be casually passing out advice that attorneys have no liability for message board advice. Logically, that appears to be a liability black hole, indemnifying all other attorneys for all other advice given on message boards… hopefully it doesn’t really work that way!

This isn’t that hard. If they’re just fairly sure their client, because he’s a loser with no remorse, will do something bad in the future, that’s not the lawyer’s job to worry about. The lawyer might try to recommend a sobriety program or something to her client as a way to avoid future crimes, but that’s on the outer edge of legal advice. [And of course, they might recommend their client take a plea bargain that involves substance abuse treatment or counseling or something]

Now, if there’s a specific crime – the client is showing the lawyer the gun that they plan to use to kill a specific person – then there’s no privilege and some obligation to take steps to prevent the crime.

If a client confesses to their lawyer, and someone else is convicted, that’s just too bad. There’s nothing the lawyer can ethically do. It sucks, but it’s better than having a system where nobody can talk honestly with their lawyer.