Misled by television again! In Breaking Bad Saul the lawyer says to Wilfred and his partner in crime, “Give me a dollar both of you. Now whatever you say to me is privileged.” I’m disappointed, I thought that show was well-researched.
I thought the same about that scene, he’s coming up with a way to convince the two people who took him to the desert at gunpoint that he’s on their side, not actually pulling a legal trick. Like he comments in the same episode, he picked a business name that sounds Jewish because a lot of his potential clients think a Jewish lawyer is better, not for any deeper reason, and I think that was the same kind of manipulation.
I think I’ll take the opinion of a lot of people people who have each studied the law for years, interpret the law as their job, and are the ones at risk of a problem if the interpretation is wrong over a casual layman’s reading. Every lawyer I’ve ever encountered thinks that answering legal questions casually on message boards has a significant risk. Not that it’s all that likely, but rather that if someone does think an attorney-client relationship has been created and goes to court based on that, it’s extremely expensive and can torpedo a career even if the court eventually rules in the lawyer’s favor. Taking ‘could wipe out savings or trash my career’ risks for the reward of ‘someone on a message board might be grateful, or might just flame me’ isn’t really a smart decision.
After all, if you actually know how to interpret the law better than the lawyers, you don’t actually have any use for their answer to the initial question in the first place, so why be concerned that they’re not giving their opinion on the initial question when they’re so clearly wrong about the question of whether there’s a risk to casual legal advice?
IANAL, but my guess:
Cleaning up a crime scene before it’s been processed is obstruction of justice. (Hiding or tampering with evidence). The only thing privilege would apply to is the confession. The lawyer is under no obligation to clean up after his client, and certainly not to hide his crimes.
I suppose the grey area is what happens when the police arrive? I assume as part of privilege, neither the lawyer nor his receptionist are obliged to divulge the name of a client? Similarly, they can’t talk about what was said, but I assume the receptionist is obliged to testify as to what she saw? That’s not covered I assume, even if the perp was a client; or does the privilege only apply afterwards, unless he was a client before the crime was committed? Or is he a client the moment he steps into the office?
UltraVires is a lawyer. And both sides are right. Technically, there is little to zero risk of creating an attorney/client relationship during a casual conversation on a message board. Practically, it’s a pain in the arse to have to answer a bar complaint (or a malpractice suit) so lawyers are more careful about this stuff than is perhaps reasonable.
I assume, too, once the lawyer is entangled, even peripherally, in the client’s crime - he pretty much has to recuse himself as he may be called as a witness over non-privileged details?
Is this an explicit conflict of interest rule? or did Law & Order lie to me?
Exactly. I don’t disagree with Ultra Vires, but I don’t want the hassle of a cocktail party conversation being raised as my having given legal advice, even if I’m certain it wasn’t in a solicitor-client relationship.
Privilege is not absolute. You should read this thread more closely.
The more ridiculous the hypothetical, the less fun they become to analyze. This one is really on the border so I’ll probably stop playing after this.
Murdering someone in the waiting room:
(1) probably isn’t confidential because it seemingly happened where the person could be readily observed and, in your hypothetical, the attorney was not even a witness to the events so it isn’t a privileged communication,
(2) the murder probably isn’t information provided to the lawyer in connection with the putative client’s representation because the lawyer wasn’t even a witness to the act (so the act didn’t provide any information to the lawyer) and the person had never consulted with the lawyer before the act so probably couldn’t reasonably be deemed to be a client or prospective client of the attorney up to the point of the murder,
(3) it’s arguable that the the statement to the lawyer after the murder wasn’t made for the purposes of seeking representation but rather was made for the purpose of seeking an accessory after the fact in cleaning up the crime scene. If the statement wasn’t made to seek legal advice, the person making it wouldn’t be a prospective client under the model rules because he wasn’t then consulting with the lawyer about the possibility of becoming a client,
(4) the putative client’s later request to clean up the blood would be in furtherance of a crime so the lawyer could not tell his secretary to clean up the blood. [Model Rule 1.2(d) says a lawyer can’t assist a client to commit a crime.]
Furthermore, the would-be client’s demand to clean up the blood would possibly trigger an exception to whatever dubious privilege claim he asserted – tampering with the evidence of a crime is generally a crime itself. Model Rule 1.6(b)(2) would allow the lawyer to disclose a confidence (like telling the police about the statement) to prevent the client from committing a crime (like tampering with a crime scene) that is reasonably certain to result in substantial injury to the financial interests of another person (which could happen happen if covering up the crime means that the murderer is never held civilly accountable for his crime - maybe this isn’t reasonably likely within the attorney’s knowledge but it could be).
The TL/DR version is there is a lot of reason to believe that the attorney could tell police everything he knows about these events and and statements without violating his duty of confidentiality. The only thing that might be protected by privilege is the statement, “I just killed someone in your waiting room.” Chances are, in your hypothetical, he’s left enough evidence to go to jail even if the lawyer can’t testify about this particular statement.
I think it’s perfect for a lot of reasons but not because it’s necessarily a perfect statement of the law.
(1) I don’t actually know if there are meaningful distinctions in New Mexico that would afford greater protections to the confidences of actual clients instead of prospective clients. If there are, the show may have been showing one instance when the difference was important and Saul Goodman was exactly right to insist on payment.
(2) Saul Goodman was stating his views on the law as a pretty decent solo practitioner, not as a perfect law-talking god. This seems like just the slightly mistaken view he might adopt in the heat of the moment to protect himself.
(3) There are slightly different protections in the model rules for current clients versus prospective clients. Why not have your prospective client hire you just to make sure, without investigating the legal nuances, that your clients get the benefit of the doubt?
(4) As people noted upthread, the idea might have been to convince his new client that the conversation is privileged. Even if Saul knew that the conversation with a prospective client is privileged, it would probably take him time and effort to explain the applicable professional conduct rules to his prospective client and convince them he was right. It’s easier to get a dollar from them and then have them rely on their previous conception that attorney-client privilege is “absolute” to use the words of one person in this thread.
There is another reason this moment on the show is brilliant. A truly good lawyer would want to understand whether representing his new client would present any insurmountable conflicts of interest with his existing clients. We can tell from this moment, and many others, that Saul is reckless in dispensing advice and completely indifferent to potential conflicts of interest he hasn’t considered. We know just what type of “criminal lawyer” he is.
We’ve all seen the typical L&O scenario where the clinic refuses to divulge its patient list or schedule - confidential, get a warrant. Also, the Private Eye whose client name is confidential, which I assume is not covered by any privilege other than “I refuse to answer your questions” and “get a warrant to look at my customer ledger”.
What about lawyers? Would the hypothetical client who comes in. “pays his $1” and then murders someone in the waiting room (then buggers off), still have his identity covered under attorney-client privilege? Or is only the content of the conversation the privileged part? Does the lawyer have to say “my client Jones was in the waiting room at the time”? Or as a person who is not charged, he can refuse to answer questions anyway? At what point is this concealing evidence?
I don’t know the scene you are talking about but there may be more to it. Three guys standing around conspiring to commit a crime are all criminals even if one is a lawyer. The lawyer in the group may later claim that he was acting as legal counsel and not a co-conspirator. In this case Saul may feel that receiving compensation is an additional piece of evidence to help his argument down the road if the need arises.
I don’t know exactly what the rules are here or anywhere, but in Aus a lawyer is a part of the criminal justice system, and is not permitted to lie in court. If your client has committed murder, and confessed to you, you aren’t allowed to enter a not-guilty plea…
Around here, I think that the best you could hope for if you confessed, would be that the lawyer you confessed to would refuse to represent you. And even that would raise red flags everywhere.
Lawyers in the US are considered “officers of the court” as well, and not supposed to lie to the court… which is why the whole concept of privilege exists, so no one can put the lawyer on the stand and force him to testify. Is it really that different in Australia?
Being in a situation where you can’t confess to your lawyer seems like a really good way to ensure lawyers won’t be fully prepared, since their clients can’t tell them anything about the crime.
Yes, that does not sound correct. A lawyer will plead how his client instructs him. From what I’ve read, a lawyer simply cannot make assertions, during questioning or opening and closing arguments, that he knows are false. She also cannot ask questions where she knows the answer will be perjured - i.e. cannot ask a question knowing it will result in a lie.
(From what I read “tell us what happened” is allowed, but if they know the alibi is fake, cannot ask for example “what bar were you while the murder happened across town”?)
Thank you, Tired and Cranky, for such a detailed and informative reply. I love that show; you’ve restored my faith in it. 
When I’m faced with such a situation, I preface any answer with, “In general, what happens in situations such as you’re describing is this, this and this. That may or may not hold true in your case, but in general that’s what occurs." Most people are smart enough to pick up on why I am answering in that manner.
If that’s the principle governing lawyers in Australia, it’s quite different from other common law countries. A not guilty plea is not a statement of fact; it’s a legal statement that boils down to: “Prove it, Crown Prosecutor.” Defence counsel may be limited in what they can advance in court, based on what their client has told them, but it’s always open to defence to do their best to challenge the evidence put forward by the Crown.
[QUOTE=Northern Piper]
If that’s the principle governing lawyers in Australia, it’s quite different from other common law countries. A not guilty plea is not a statement of fact; it’s a legal statement that boils down to: “Prove it, Crown Prosecutor.” Defence counsel may be limited in what they can advance in court, based on what their client has told them, but it’s always open to defence to do their best to challenge the evidence put forward by the Crown.
[/QUOTE]
Well it seems Australian rules are the same as other common law jurisdictions. The Australian Bar Association Barrister Conduct Rules say on this point
They are the same as in other Common Law jurisdictions I know.
Here’s a question for legal people discussing lawyer/client privilege.
Suppose in some completely hypothetical situation 
you are a non-lawyer - let’s just say an actuary, to pick an occupation at random :). You’re involved with a situation at your company in which you’re dealing with an E&O situation. What you’re being instructed to do is to copy the corporate E&O legal staff on all emails dealing with the situation, and to include in the header of the emails the phrase “privileged and confidential attorney-client communication”. The actual content of the emails, of course, is just actuarial discussions related to the calculations.
The idea, of course, is to prevent a search of emails from using these emails as some sort of evidence in the event of a lawsuit. My questions are:
[ul]
[li]Is this legal or some sort of abuse of the system?[/li][li]Does it “work” as a practical matter? And if so, then what’s to prevent anyone from keeping anything confidential by pretending it’s attorney-client communication?[/li][li]Conversely, if it doesn’t work, then how does that come about? How would anyone find out that it’s not privileged info until they actually read it?[/li][/ul]
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It would be privileged communication if it is shared with the purposes of potentially giving legal advice. Discussions relating to actuarial calculations can certainly be those, if it’s related to actual or contemplated litigation or transactions.
(Acturies also have confidentiality rules BTW). -
No. It has to be as I said communication made for the purpose of legal advice.
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Typically the way it’s done is that (if its litigation) then a request is made, the question of privilege is raised in opposition and then typically a judge rules on whether it can be shared or relased.
What AK84 said. Putting “privileged” on correspondence doesn’t make it privileged. It’s intended to signal that the document is privileged and clue the reader in that they should stop reading if they’re not the intended recipient. Essentially, it’s meaningless.
I heard something similar, where some companies had been having their company lawyer sit in on meetings to create a cloak of confidentiality. Presumably somewhere along the meeting, they would ask, “so does any of this so far create legal issues?” I do have to wonder at what point a meeting becomes a confidential discussion with the lawyer?