I watched a documentary last night about Michael Mastromarino, a dentist who masterminded a multimillion dollar organ theft ring in the New York area. He and his group harvested organs, bones and tissue without permission from a thousand or more corpses, most famously the corpse of Alistair Cooke.
Among those appearing on the program were the two lead prosecutors, Mastormarino himself and several of his employees, and Mastromarino’s defense attorney. Just as an aside, I thought it was an excellent program.
But my question comes from one particular segment with defense attorney, who said something very close to, “That’s when I understood what the smoking gun was, and that he had been lying to me all along, and that he was guilty.” The ‘smoking gun’ turned out to be DNA evidence. There was a requirement to submit blood samples from harvested corpses that would be tested for all kinds of maladies like HIV. Ultimately it turned out the the DNA from the blood samples didn’t match the DNA from the harvested tissues. They kept a stock of known and safe blood samples to submit, and and submitted it instead of blood actually from the corpses. Anyway, I’m going too far afield because I really enjoyed this very creepy program.
It may be relevant that Mastromarino ultimately pleaded guilty to all charges and was sentenced to 18-56 years in prison for his crimes.
Anyway, I was under the impression that the lawyer client privilege lasts forever, or for the life of both parties, but certainly more than two years. Mastromarino was convicted in 2008 and this guy Mario Gallucci was still his lawyer at that time.
So, I can guess that Mastromarino might have given his lawyer permission to say whatever he wants about the case, but I don’t know that and I don’t even know if that would be sufficient. I also assume that there is no longer a lawyer-client relationship, but I don’t know that for a fact either.
Can anyone tell me what circumstances might allow a defense lawyer to publicly comment on the details of his case without being disbarred?
Can’t speak for the rules in New York State, but the general rule in Canada is there are two circumstances where defence can publicly comment on a former representation:
the former client has given permission; or,
the former client is discussing the case publicly in a way that inaccurately reflects the lawyer’s professional advice given to the client, in a way that reflects adversely on the lawyer’s integrity.
Other than that, no. The solicitor-client privilege lasts beyond the term of the retainer itself, even past the death of the client.
Of course, in this case, where the accused is participating in the program, they’re presumably being paid, and the producers of the program might have been willing to pay more if the accused waived his privilege and let his lawyer speak as well. Pure speculation on my part, of course.
In America, an attorney is an officer of the court. They represent clients, but they are part of the judicial system. We know it happens all the time, but they are not allowed to support the lies of their client. If they know he/she is guilty, they have to come forward. We know that rarely happens.
Here’s how it goes with a criminal attorney:
The client walks in. The attorney recognizes the person and gets or already has an idea about the case. The first thing out of the attorney’s mouth is. “First listen to what I have to say. Whether you are guilty or not, it’s my job to provide the best representation possible. This is what I do. Also, any admission of guilt to me is an admission to the court. Tell me the facts of the case that support your innocence and nothing further. Please proceed.”
So when an attorney has been duped and especially when the info is public, he has the right and even duty to come out.
Bullshit. I know that’s harsh for GQ, but that’s about as wrong as it is possible to be. So wrong it’s stunning.
If I still did criminal work, a client could come in to my office, hire me to defend him on one case, admit that he did it, he’s glad he did it, he enjoyed doing it, he can’t wait to do it again, and that he also committed umpteen jillion other crimes, enjoyed them, plans to do them some more, and wonders if he can borrow my copy of the criminal code so he can see what other laws he’d like to violate in the future. I have no duty to report him to anybody.
Mr. Bundy. Given that we know Oakminster to be a lawyer, it would seem that your information is incorrect. Any reason we should take your opinions?.
Oakminster. Thanks for reporting your post. Saying something is “bullshit” in General Questions might be the truth, but we prefer you to express yourself in a more dignified way. K?
What about, say, as part of the defendant’s allocution (ah, Law & Order, I love you) to the court, he admits all this stuff and it’s put into the court record. He says to the judge, “Yes, I did the crime, and I stole all that stuff and I faked the tests and I lied to my lawyer,and blahblahblah…”
Could this be considered a waiver, at least of the particular information the client has admitted? Would the lawyer be free to confirm what his client admits to, assuming he knows it is true?
OTOH, suppose the client is found not guilty. And then he goes on Geraldo and admits the exact same stuff because he cannot be charged again.
Would these scenarios be any different from each other from a legal ethics POV, and could they constitute a waiver of privilege regarding the specific items admitted to?
Here’s the Model Rules of Professional Conduct. There are variations in some jurisdictions, but similar principles apply in most places, so far as I know.
This sounds to me like two separate issues. I thought attorney/client privilege meant that the attorney* cannot be compelled* to disclose information about his client.
But does the law prevent an attorney from willingly disclosing information? Or only professional ethics (and therefore possibly the Bar Association)?
I got my A+ in Professional Responsibility a long time ago, passed the MPRE with flying colors, and none of my clients have confessed any prior perpetration of or present intention to commit any crimes or fraud, so you’ll forgive me if I don’t scour the Model Rules, Wexis, or the Google, but, I think a few rules are being confounded:
(1) In general, all private communications with one’s attorney are privileged and subject to disclosure only with the consent of the client.
(2) A lawyer is permitted, but not required (under the Model Rules, some states make it mandatory), to reveal privileged information to prevent future serious physical harm to another or if the lawyer is being used to commit a present/future crime or fraud.
(3) A confession of guilt with respect to a completed crime does not fall under the exception in (2) because it is neither a future crime nor, quite likely, does it make the attorney an instrument in completing the crime.
(4) A lawyer has a duty to deal candidly with tribunals. He/She may not suborn perjury or put on evidence (including testimony) that the lawyer knows to be false. However, some states afford a criminal accused an absolute right to testify. In this case, a procedure called “testifying in the narrative” is used. The attorney calls the accused to the stand, asks the accused to tell his/her story, and includes no further questions on the part of the accused’s attorney. The accused is still subject to cross-examination, of course.
(5) If a lawyer’s knowledge prevents him/her from faithfully discharging the duty of confidentiality due to the client and the duty of candor due to the tribunal, the attorney is compelled to withdraw from the case—not reveal confidential information. The standard formulation is that the attorney requests the court permit him/her to withdraw “for professional considerations.”
What about a lawyer saying something that a client told them that was said in confidence? I’m thinking of Capturing the Friedmans where Jesse’s lawyer, Peter Panaro, repeats that Jesse told him he was molested by his father, and then Jesse on film said that that was a lie. That whole thing came off as a bit sleazy, but was what Panaro doing something that was out of bounds for him as an attorney?
The solicitor-client privilege is more than just a compellability rule, in that it binds the lawyer, but can only be waived by the client. So even if the lawyer wants to testify for some reason, the lawyer cannot do so, unless the client waives the privilege.
In my jurisdiction, the professional obligation of confidentiality is broader than that of solicitor-client privilege, which as you observe, has its roots in evidential rules. However, it is a legal obligation, since in the Canadian system, professional ethics are a form of delegated legislation. If I breach my professional obligations, I’m liable to be found in breach of the Legal Profession Act (name varies with the jurisdiction). So yes, it is an obligation of confidentiality imposed by law.
And I should add to my earlier comments, solicitor-client privilege doesn’t apply to statements about future crimes, as Oakminster and Kimmy Gibler have already mentioned. I was thinking more of the situation in the OP, where the events are in the past and the issue is whether the lawyer can talk about his client’s confidences. In that situation, I think the only two are the two that I’ve mentioned.
I’m not familiar with the example, but in my jurisdiction, information disclosed to the lawyer in the course of a professional consultation is covered by the duty of confidentiality, even if it is not part of the advice given by the lawyer, and even if the client never actually acts on the lawyer’s advice. It may not be covered by solicitor-client privilege, but it is covered by the duty of confidentiality. If I’ve understood your hypothetical example correctly, it sounds to me like it would be a breach of the duty of confidentiality.
Again, I can’t speak to what the rules are down south, but I wouldn’t take either of those examples as a waiver of solicitor-client privilege (or the duty of confidentiality). It’s the client’s privilege, and unless and until I get express instructions from the client, I’m bound by my duties of confidentiality. It’s a duty that I owe to the client, unless clearly waived.
One extremely odd exception was decided by the North Carolina State Supreme Court a couple of years back: If a lawyer is in possession of confidential/privileged information from a deceased client, the revelation of which would result in preventing a miscarriage of justice, the rule barring his disclosure of such information continues to bind him from volunteering such information, but he may inform the court that he possesses information from a deceased client which is both confidential/privileged and relevant to the case before the court, and then abide by a court order to disclose such information. I gather this is a compromise between the absolute nature of attorney/client privilege and the court acting in the stead of the deceased client to permit the information to be revealed where it will not harm the client and will prevent the miscarriage of justice.
It’s a pretty narrow exception, but in this state at least it does exist. I happened to pay attention to the stories since there had just been a discussion of attorney/client privilege on the board when the story broke.