Say your friend's a lawyer. Is what you tell her confidential?

Factual Questions
1

Note: This is another one of my fictional situations threads. I’m writing a work of serialized fiction and every now and then must needs ask for help from the smart gang here at the Dope. I am not asking for actual legal advice, and I know no one here is my attorney, and may not even really be an attorney. I just need verisimilitude.

So here’s the set up. A defense attorney (specializing in criminal law) goes to the hospital bedside of her best friend, a generally law-abiding citizen and all round mensch. Attorney character has no reason to believe her friend is involved in anything nefarious. Oh, and the attorney character has never acted as her friend’s actual attorney before.

Friend character, however, has a secret relating to how she got into said hospital, and it involves someone else’s crime. (Not directly perpetrated against her, and this other guy is also a protaganist who’s made an assload of mistakes.) Friend really really wants to protect this other person – whom I, as author, also need to protect from legal reprecussions. But she also needs legal advice badly, and also the support of her best friend.

Friend starts to tell the attorney character about her knowledge of a crime.

My question: does the attorney need to say anything specific to the friend before the attorney can be expected to treat the info as confidential? Where is the dividing line between a confidence told to a friend, and one told to an attorney… if this person is not your attorney?

Hope this makes sense…

2

The dividing line tends to be when you are paying them for a service.

My experience when dealing with friend/family who are also lawyers is if the conversation starts going legal they will very quickly specify they are not acting as an attorney in the conversation. The other option I’ve seen is to ask to for a dollar retainer before continuing the conversation.

3

I thought the usual trick was to make the enquiry about a ‘hypothetical situation’.

4

Under the Rule in Stoid’s Case, it has to do with whether advice is being sought or mere information. :wink:

5

Conversations with prospective clients are privileged, just like conversations with former clients. (And like conversations with actual clients, of course, if they’re taken on). The ABA Model Rules of Professional Conduct are followed closely by most jurisdictions in the US, and state as follows:

Note that paragraph 2 of the ABA’s commentary to this rule is relevant here:

It sounds like you’re setting up a scenario in which your character in the hospital isn’t seeking to retain legal services for herself, but spontaneously offering information about the criminal misdeeds of a third party. Therefore, she probably couldn’t have a reasonable belief that your attorney character might form an attorney-client relationship with her - and that conversation wouldn’t be privileged at all.

Even if your character in the hospital were talking about her own criminal deeds, and her desire to hire your attorney character on her own behalf, it’s unlikely that her conversation would be privileged. You could tweak the facts to change this - but it sounds like she wouldn’t have much reason to hold a reasonable expectation that the attorney might take her case.

Note, also, that the attorney-client privilege is not absolute. Under the Model Rules, rule 1.6:

(Yes, I know the rule on prospective clients refers to 1.9, not 1.6 - but for our purposes, 1.9 just incorporates the 1.6 standards).

In short: On the facts you’ve given, in which your character is not seeking legal representation on her own behalf, her conversation would almost certainly not be privileged.

Of course, this is all under the Model Rules. If you want the greatest possible verisimilitude, you should consult the local ethics rules of whatever jurisdiction your story takes place in. Your location field says you’re in New York - if the story takes place there as well, you may want to look at the NY Bar rules, here: http://www.nysba.org/Content/NavigationMenu/ForAttorneys/ProfessionalStandardsforAttorneys/Professional_Standar.htm

6

IANAL, and NONE OF THIS IS LEGAL ADVICE OF ANY KIND. Plus, I’m generalizing.

ETA-Mr. Excellent got there first, with cites–but note that his cite to 1.6 isn’t privilege–it’s confidentiality. Privilege isn’t an ethical rule–it’s a legal one.

The short answer is that the dividing line IS whether somebody is telling the lawyer something as a friend or as a lawyer. If the lawyer isn’t your attorney, (in general terms) he owes YOU no duty of confidentiality beyond that which he feels he owes you as a friend.

Now if your character is asking his friend for legal advice, that would make the lawyer his lawyer (if the lawyer agrees to give legal advice). Then the conversation would be confidential.

A lawyer in your imaginary situation would probably first try to stop his friend–warn him he isn’t the friend’s lawyer (“don’t tell me that–you know I’m not your lawyer”.

To explain in a little more detail (perhaps handy for an author): as a first matter, there are two related issues in play when we’re talking about confidence and lawyers:

(1) whether the statement to the lawyer is protected by attorney-client privilege. This means nobody can subpoena the lawyer, or force the lawyer to testify to what you told her. (the standard rule is a confidential communication between a client and attorney for the purposes of legal services).

(2) does the lawyer have an ethical obligation to keep the statement confidential. This protects far more, but has no weight in the eyes of a court. (the basic concept protects "any information gained in the course of representing a client)

So the range of privileged material is far narrower, but far better protected than the range of material that a lawyer must keep confidential.

Each of these, however, is in the realm of CLIENT confidence. So if the lawyer isn’t your lawyer, not only does neither apply, but (painting with an awfully broad brush) the lawyer may feel ethically obligated to USE that information if it protects his client. (while a lawyer doesn’t HAVE to use distasteful methods, such as breaking confidence with a friend, he does have to act in the best interests of his client)

Now, the attorney-client relationship is broader than just a paid retainer–it is created whenever a lawyer is giving legal advice–and (for example) when you’re talking to a lawyer to decide whether to hire him).

So if the lawyer agrees to give his friend a little legal advice as a favor, it would make the conversation confidential. (note–lawyers are generally really careful not to do this–they REALLY DON’T want to create an attorney-client relationship without thinking about it (as it hits them with a bunch of obligations)

7

Hmm, wow, lots to think about. (Sorry for not answering sooner, but I thought no one had responded yet since I got no notices from my thread subscription. Kooky.)

Thanks very much for the info so far, guys. (And LOL to Kimmy Gibbler … I was following that thread with interest partly because of this storyline, since so much of the disagreements involved what an attorney would reasonably think of as “legal counsel” and what a regular shlub would.)

Yes, the story takes place in NY. Technically speaking, the hospitalized friend (let’s call her “Helen”) is withholding info from the police about a past kidnapping, because she has good reason to believe both her life and someone else’s will be in danger if she spills too much. That’s what she’s [del]consulting[/del] talking to her legal pal (“Mary”) about.

The kidnapping has been resolved, btw, so by withholding info, Helen is not endangering the victim.

So if I understand the aptly named Mr. Excellent and whorfin’s comments, and Helen needs to be talking about her own crime, is the scenario Helen finds herself in – withholding of info from the cops – enough of a reason to say that it’s her crime that she’s talking to Mary about?

Character-wise, I really want Helen to have this convo with Mary, and I don’t think Helen would do so if she felt this wasn’t confidential. But it sounds as if, assuming Mary is a stand-up kinda gal (as she is) and a good attorney (ditto), she would probably warn Helen not to say anything to her, past a certain point. Or would she?

Man, I’m sorry for rambling. I’m on cold medicine and probably should’ve waited to post until I’m more lucid…

8

I haven’t read through the technical discussion above, but I have a personal reference. One of my dearest friends is a high-powered attorney. I tease her all the time that she’s the only woman I trust to keep a secret. When I’m about to tell her something that must not leave the room (usually nothing to do with legal advice) I’ll pause, grab a nickel from my wallet, and hand it to her. She always smiles and nods, and gives me her oh-so-perfect “I’m your lawyer and can be trusted with anything” look.

I think your best bet is to establish a similar ritual between these two before hand. . .

Good luck!

9

Well, without purporting to say what NY law is, what your character is looking for sounds like pretty classic legal advice: “Here’s something that’s happened–am I in legal trouble/what does the law say I have to do?” So she has a good reason to talk to a lawyer.

It doesn’t have to be about her crime–since the question can be “have I committed a crime?” or " what are my legal duties?" (the usual way of explaining this is that we often go to lawyers to find out what the law is–if we required that she know she had committed a crime, you’d remove most of the value of a lawyer–as non-lawyers may know what happened, but not what the law is, or the legal consequences are).

The key, as I and others have said is that she has to asking for legal advice, not just a friendly chat. That’s just a matter of what your character is asking for–which you are in control of.

Well, plenty of lawyers do do favors for their friends. As it has been described to me, it’s not particularly a good idea outside of a formal representation (because, in the eyes of the law, if you do do that kind of a favor, you do create an attorney-client relationship).

So while any good lawyer would probably have a first reaction of “I’m not your lawyer, you’re not my client”, it’s not unreasonable (or beyond the bounds of a believable story) for a good lawyer to decide to do her friend a favor by giving legal advice after thinking about it (for example, if there are any conflicts of interest); They could formalize it by handing over a dollar (or, edited to add, a nickel), but as I understand it, that’s not necessary–what makes someone your lawyer is that they’re giving you legal advice, not whether or not you’re paying them to do so.

A bad lawyer could end up in the same position by giving legal advice without thinking about it, which creates an attorney-client relationship whether they thought about it or not.

This risk of having something viewed as legal advice when (1) the author isn’t a licensed lawyer, and (2) doesn’t want to be anyone’s lawyer is why this post ends with a reminder that IANAL, and this isn’t legal advice of any kind.

10

I concur with whorfin - it sounds like Helen is worried that by not talking to the police about what she knows, she may be committing a crime, such as obstruction. That’s a separate issue from the kidnapping, committed by the third party.

By having Helen tell Mary all that she knows, Mary can then evaluate whether Helen may have committed a crime separate from the initial kidnapping, and therefore it would be a request for legal advice.

11

Its a judgement call. Speaking for myself, I am usually happy to give answers on general issues (“how many years for theft”, “seven”) without considering that a legal professional relationship has arisen, it is when the questions become specific to the person/issue (“how many years would I get”, “ask ur lawyer”).

In this case, if its a general question, I think your lawyer can answer, its when it becomes specific to the issue is when your characters friend has to caution her about a lack of a attorney-client relationship.

Even if one is formed, please be advised, that legal professional privilege is not absolute, there are situations where there may be a duty to break it; where a vulnerable person such as a minor is at risk for instance. So a lot depends on what your character is hiding.

12

I am not a lawyer, but I like books. :slight_smile:

Have you considered a religious angle?
I believe that some communications to your spiritual adviser can be legally withheld.

13

I agree with whorfin and NP. Helen appears to be seeking legal advice. You can ask lawyers about all sorts of things other than whether you committed a crime; even if Helen has no reason to think she’s on the hook for obstruction or related issues, this is a matter in which a layman’s understanding of legal rights – her own and others’ – is necessary for her to decide on the appropriate course of action. Therefore it’s easily the type of conversation that could justify the privilege.

But as folks in the first part of the thread noted, that doesn’t mean it is privileged. Helen and Mary need to understand that they’re speaking in a professional, not personal, capacity. As an author, this should be pretty easy to set up – it’s not necessary that a fee be paid, or even contemplated. You just need a line or two of dialogue to make clear that Helen needs legal advice and Mary’s willing to provide it. Note however that if Mary is good at her job, she’s not going to be blase about this, because once she takes Helen on as a client – even if Helen thinks it’s only for the purposes of one conversation – Mary has the full panoply of professional obligations. But that doesn’t mean Mary needs be written as heartless – lawyers agree to do minor services for friends all the time. It’s just that Mary will understand this isn’t a small thing, and she will decide accordingly.

–Cliffy

14

right - a lead-in from Helen about “I’m so worried - I think I may be in trouble because I know about someone who broke the law…I don’t know what to do” would be the sort of thing that could lead Helen to appreciate that what follows may be a request for legal advice, and switch from “friends talking” mode to “lawyer potentially giving legal advice to a friend” mode.

15

Thank you all very much! You’ve really helped me a great deal, and I will certainly use the angle that Cliffy and Northern Piper mentioned – a shift in the conversation between Helen and Mary, where Mary becomes aware that this is Legal Advice and she needs to change from regular pal mode to actual counselor mode.

In order to get away from having to show the advice Mary gives her (since I’m not sure I can portray it 100% accurately) I’ll probably change the scene once Helen starts talking and Mary has her initial, internal reaction to the news that her friend’s involved in some deep, dangerous crap. The readers know everything Helen’s about to say anyway, and since whatever Mary advises, Helen’s gonna keep her secret either way, the actual conversation isn’t that important.

Though I am curious whether Mary is obligated to advise Helen (or at least pay lipservice to the idea) that she should tell the police the truth. (Bolding to highlight this question lest it be lost in all my other rambling.)

Thanks, that’s a good point! I do have a priest character I could use, though on the downside, Helen isn’t Catholic. :slight_smile: I haven’t established Helen as a particularly religious character. Not that this would be a problem – I never really showed Helen’s family before, but that doesn’t mean she doesn’t have 'em; they’re still gonna show up at the hospital when she’s injured.

Really, I just want to show the bond between these two, to provide Helen a way to share her feelings on this situation (in a way that she’d feel safe), and to plant the seed for a later storyline that Mary knows something about the crime that isn’t known by the cops, including her fiance. (In this serialized story, plots tend to weave their way through various characters and what starts out as a straightforward kidnapping can have reprecussions for many other people on the canvas even if they weren’t immediately involved. Old school soap-style storytelling at its best. I like to think, anyway. :D)

Many many thanks again!

16

To what extent Mary has an ethical obligation in this direction is based on a bunch of things, but in the typical instance you would expect Mary to urge Helen to come forward, especially if it doesn’t put Helen in legal jeopardy. But if Helen refuses to do so – whether Mary agrees with her reasons or not – Mary is prohibited from divulging the contents of the privileged communication.

–Cliffy

17

Perry Mason always used to start out “Give me a dollar. Ok, now I’m your lawyer.”

18

Excellent, you’ve been very helpful, Cliffy. Perhaps in a future installment, I’ll pencil in a reference to one of Mary’s wise colleagues and name him “Cliffy”! :slight_smile:

19

I don’t know if this is kosher or not, but I just thought I would bump to thank the good folks in this thread once more, because the installment with the attorney/friend scene has just been posted to the serial. I ended up taking some dramatic license (I mean hey, it’s basically a soap opera, there’s gotta be some stretching of the truth) but I think, due to your advice, the attorney character comes across as fairly professional and believable. Hopefully I didn’t screw up any legal issues relating to obstruction or confidentiality, but if so that’s of course my fault, not yours.

And btw, I included a teensy nod to Cliffy and Whorfin – with a slight spelling change – in gratitude for your help. But I’m thankful to everyone who replied!

20

Happy to help!

–Cliffy