A non-lawyer friend asked me tonight: “Can law enforcement offer a deal to a suspect if he agrees to wear a wire so they can nail his attorney? Does attorney-client privilege go both ways?”
My answer was: As far as I know, yes. The privilege is the client’s, not the lawyer’s. I’ve never heard of this issue arising, however.
What say you, O LawDopers?
Nail his attorney for what, exactly?
Something illegal I guess. Unless the question is sexual in nature. There’s a single female lawyer I’d love to nail.
Maybe you could catch him talking about how he bribed the judge ?
The attorney client privilege is held by the client. He is free to waive it, unless we’re talking about, say, a conversation between the lawyer and two or more prospective co-defendants, in which case he may not inculpate the others even though he waives his own privileged communication.
Also of note is the “crime/fraud exception,” in which the privilege is pierced when the purpose of the communication at issue was to enable or aid anyone in the commission of a crime or a fraud.
But this gets messy very quickly.
The guy wearing the wire does so to cut a deal with the Feds. Who tells him that the deal is a good deal? His lawyer? Obviously, he can’t discuss this with his lawyer. So he needs a different lawyer. But if he’s got a different lawyer, is the suspect lawyer still his lawyer?
I don’t see why that would matter. It’s a sting operation after all.
Well, if the rat HAS representation (which he does, because he’s ratting out his lawyer), then how did the rat make the deal with law enforcement?
Did he waive his right to counsel?
Could he make an informed waiver without consulting with counsel? If you think he couldn’t make such a waiver, then how do you ask your attorney for help in stinging your attorney?
If he got other counsel to advise him, how did he do that without either attorney or both attorneys running afoul of the Model Rules of Professional Conduct?
In the case against the attorney, what’s work product and what isn’t? Few attorneys will flat-out tell their clients, “Now you need to break the law.” And a conversation that might be sting-able, if suitably couched in hypothetical or sideways language, can be seen as strategy rather than the crime/fraud exception. That would make it work-product and then the lawyer can argue that his strategy with this client, if outed, would adversely affect his ability to represent others.
So it’s dicey.
I am not your lawyer and this is not legal advice.
But a crooked lawyer might say something like, “Let me tell you how things work in this town. We’ll make a deal with the judge to pay him five thousand dollars and your case gets dismissed.”
I can imagine cases where the local court system might be corrupt and the judge and the local lawyers are all working together to fleece the people outside the system.
Does that work both ways? If the lawyer suggests something like bribing a judge or tampering with the jury, is the client legally obligated to report this potential crime to the police? Or can he just say no and keep quiet about the fact that the suggestion was made?
Correct, but with the caveat that, at least in my jurisdiction, one must prove the crime/fraud exception without invading the attorney-client privilege. Once the crime-fraud exception is proven, however, there is no privilege and all communications are fair game. Given that the client holds the privilege, however, the client can waive the privilege and crime-fraud doesn’t come into play.
My friend is writing a crime novel, and just added this to his question: "How about I put it this way. The desperate federal agent gets a suspect alone and says, “If you feel your attorney is doing anything that might jeopardize your defense or put you in danger of further charges, I would be happy to discuss it in the presence of new counsel.”
He can’t, of course, recommend a lawyer, but it does drop the hint that [current] defense counsel may be working for the law firm of Gotti, Luciano, and Gambino."
I responded, I see no problem with such a remark by a Federal agent, as long as there was no implicit threat.
Further thoughts?
That hypothetical federal agent is screwing himself, his career, and the case by getting the suspect alone in the first place.
Once the suspect has asserted his right to counsel, he has to knowingly and willingly waive it.
A federal agent, alone with the suspect, doing what essentially looks like offering him a deal- there are so many violations in your hypothetical that I’m hoping next week’s Criminal Procedure final is this easy.
Edited to add: the implicit threat is that the prisoner is in custody, has been deprived of the advice of counsel that he has already retained, and is being offered a deal.
I am not your hypothetical lawyer and this is not hypothetical legal advice.
Assume the suspect was arrested for the crime of, say, misprision. Assume the suspect asserted his Fifth and Sixth Amendment rights to counsel. Assume counsel has advised the police that the police may not speak with his client outside counsel’s presence. Two questions:
[ol][li]May the federal agent discuss with the suspect topics other than the crime of misprision, including discussions of other crimes the suspect is, um, suspected of, without violating the suspect’s rights?[/li]May the federal agent talk to the suspect; i.e., may the federal agent say things in the suspect’s presence that do not require or expect a response from the suspect (are not designed to elicit an incriminating statement) without violating the suspect’s rights?[/ol]
If I recall correctly, probably not and maybe.
If he’s already in custody and his attorney is present, the federal agent getting another meeting with the accused wouldn’t fly. You can’t say, essentially, “we’re going to haul you out of your cell and talk to you, but… ummm… not about what we arrested you for, so you don’t need your lawyer.” He’d have to waive his right, which is pretty damn complicated after it’s been asserted, simply because we don’t want to encourage just that type of action from law enforcement.
As for #2, law enforcement can say any number of things in the suspect’s presence, while transporting him, while processing him, etc., hoping to elicit a response or two, but again, their ability to do so is quite limited simply because the suspect has been seized for constitutional purposes.
I’m going over the finer points of this tomorrow afternoon- I’ll try to be a bit more coherent then, but the answers will likey still be “probably not” and “big, qualified maybe.”
This is the whole problem. How can the feds talk to the rat about ratting out his lawyer without the lawyer knowing about it? They can’t talk to the guy unless he’s got his laywer present. And they can’t tell him to get a new lawyer and keep it secret from the first lawyer.
The only situation I can see this happening in real life is if the guy wearing the wire is not under any legal investigation and is wearing the wire not as part of a plea bargain but as a volunteer good citizen. Although how this gets arranged I can’t imagine. The feds can’t exactly cold call people on the dirty lawyer’s client list, because most of the people who patronize the dirty lawyer are going to be shady themselves. So one of the clients would have to go to the Feds on his own and tell them his lawyer was dirty and volunteer to help the Feds bust him.
Or maybe a plant. An FBI agent posing as a client wears a wire and approaches the laywer. The agent explains some fictional legal problem hoping the dirty lawyer gives illegal advice. But this probably violates all sorts of laws and/or professional ethics.
Unless I missed something, nothing in Elendil’s Heir’s hypothetical establishes that the suspect is in custody. If the suspect is not in custody – i.e., has not been arrested – the cops can talk to him all they want without his lawyer present. The mere fact that a person has a lawyer does not mean the cops can’t talk to the person. Miranda rights kick in at custodial interrogation.
Thus, FBI agents can come to Tony Soprano’s house, or approach Chris Moltisanti at will, without violating their rights to counsel. They aren’t under arrest.
(Maybe the hypothetical is meant to include the fact of custody, in which case my point is moot.)
(And, of course, I am no one’s lawyer, and this is not legal advice of any kind.)