# When is it ok for a lawyer to publicly dump on his (ex?) client **URL:** \ **Category:** Factual Questions\ **Created:** [May 17, 2010, 10:31pm UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827 "2010-05-17T22:31:59Z")\ **Posts on this page:** 19\ **Page:** 3
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 19, 2010, 9:16pm UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/41 "2010-05-19T21:16:27Z")
> [@Boyo\_Jim](#): > > Really? If your client says, “I intend to shoot the trial judge at noon on June 1st at the corner of State & Main”, and your sole action is to say, “I advise you not to”, you have no further obligation as an officer of the court to do _anything_? See the model code exceptions quoted above ( **D18** ’s post lists the relevant ones). In the specific example you gave, I’d consider that an obligation to report would probably attach. **Oakie** ’s notes give discretion to the attorney; presumably this is to excuse him from an obligation to report an idle threat of the sort, “If I ever get a chance, I’m going to _kill_ that bastard” – which he would be obliged to report without discretion, even though he realized it was likely rhetorical and said in the heat of the moment. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [May 19, 2010, 9:17pm UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/42 "2010-05-19T21:17:35Z")
> [@Any\_Other\_Name](#): > > A related question that comes to mind from novels and television: If your client’s told you all about having done what he’s charged with, can you still put him on the stand and let him testify that he didn’t do it? Would you be suborning perjury, or would you only be doing so if you told the client to lie? As the Gilbert Law Summary says, > [@](#): > > **What Lawyer Should Do When Client Intends to Commit Perjury** > > Under the Model Rules, if a client intends to commit perjury, the lawyer should take the following steps: > > 1. Attempt to dissuade client from committing perjury or testifying. > 2. Attempt to withdraw from representation, if permitted. > 3. Let client testify but avoid asking about sensitive subjects. > 4. Disclose situation to the judge (unless in a jurisdiction where client may testify in narrative form — _i.e._, telling story without counsel asking questions). ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 19, 2010, 9:21pm UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/43 "2010-05-19T21:21:40Z")
> [@Any\_Other\_Name](#): > > A related question that comes to mind from novels and television: If your client’s told you all about having done what he’s charged with, can you still put him on the stand and let him testify that he didn’t do it? Would you be suborning perjury, or would you only be doing so if you told the client to lie? See above on “testimony in the narrative.” A lawyer cannot lead a client to perjure himself, but if the client insists on denying under oath what his attorney is aware he actually did, he will simply put him on the stand and say something like, “Tell us in your own words what…” This preserves the client’s right to speak in his own defense while protecting the attorney from suborning perjury. ---
**Author:** ![Irishman](https://avatars.discourse-cdn.com/v4/letter/i/b487fb/32.png) [@Irishman](https://boards.straightdope.com/u/Irishman)\ **Post date:** [May 19, 2010, 9:30pm UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/44 "2010-05-19T21:30:20Z")
**Any** , that has been answered. It’s called “testifying in the narrative”. The lawyer doesn’t cooperate in telling the lies, but merely sits quietly while the defendant tells his story in his own words. I, too, want clarification from **Oakminster**. If you happen to stumble upon your client laying out his plans to slaughter the judge, and he says to you, “Yes, I’m gonna kill him this way on this date,” you aren’t compelled to alert somebody? He gets arrested, mentions that you knew about it, you can’t be charged as an accessory? As a co-conspirator? ---
**Author:** ![Happy\_Poster](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Happy\_Poster](https://boards.straightdope.com/u/Happy_Poster)\ **Post date:** [May 19, 2010, 9:34pm UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/45 "2010-05-19T21:34:43Z")
Is there any legitimate reason to testify in the narrative? Or is it pretty much a sign that the client is guilty of at least something? Are the rules similar this side of the pond? Similarly, when a legal team withdraws is that usually a sign of same? ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [May 19, 2010, 9:40pm UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/46 "2010-05-19T21:40:19Z")
> [@Irishman](#): > > He gets arrested, mentions that you knew about it, you can’t be charged as an accessory? As a co-conspirator? In all U.S. jurisdictions that I am aware of, foreknowledge of a crime does not make one an accessory. Exceptions have been made when the victim is a child. ---
**Author:** ![Swallowed\_My\_Cellphone](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@Swallowed\_My\_Cellphone](https://boards.straightdope.com/u/Swallowed_My_Cellphone)\ **Post date:** [May 19, 2010, 9:54pm UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/47 "2010-05-19T21:54:46Z")
> [@md2000](#): > > Also recall the case of Paul Bernardo in Ontario, Canada. He and his wife Karla Homolka kidnapped, raped, murdered and dismembered 2 teenage girls, and made videotapes of the process. > > After the Ontario police tore his house apart and found nothing, the defence lawyer went in and retreived the hidden videotapes. He then kept them confidential for quite a while. Bernardo obviously told his lawyer what they had done and provided the proof. My memory may be fuzzy on this, but I believe that Bernardo, in handwritten noes instructed his lawyer to retrieve the videos, but _not_ to view them. The instructions said they may contain exculpatory evidence. Following instructions, Ken Murray (the lawyer) did not review the tapes for quite awhile. Then upon getting instructions to destroy the tapes and being told his client intended to lie on the stand, Murray quit. Bernardo’s new lawyer handed the tapes over to police. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 19, 2010, 10:09pm UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/48 "2010-05-19T22:09:00Z")
> [@Angry Lurker](#): > > Is there any legitimate reason to testify in the narrative? Or is it pretty much a sign that the client is guilty of at least something? Are the rules similar this side of the pond? > > Similarly, when a legal team withdraws is that usually a sign of same? 1. No, there can be a lot of reasons why narrative testitmony is done, indeed where you have an expert witness on a highly technical matter often times the testimony is given with little or no prompting from the Advocate. 2. yes it is done in England and Wales and in Civil Cases it is becoming the norm to write a Witness Statement and have that stand in as Chief. It should be pointed out that a Competant Barrister should be able to address this issue. I remember one trial in Thames Magistrate Court a few years ago(2007 IIRC) where the Client had told me that he was guilty (this was a affray charge) and it turned on identification. As the Accused does not testify if at all until after the close of the prosecution case, I expended my energies in attacking the Prosection witnesses in cross and at half time managed to get the judge to agree to dismiss the case without opening my defence. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [May 19, 2010, 10:16pm UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/49 "2010-05-19T22:16:03Z")
> [@Swallowed\_My\_Cellphone](#): > > My memory may be fuzzy on this, but I believe that Bernardo, in handwritten noes instructed his lawyer to retrieve the videos, but _not_ to view them. The instructions said they may contain exculpatory evidence. Following instructions, Ken Murray (the lawyer) did not review the tapes for quite awhile. > > Then upon getting instructions to destroy the tapes and being told his client intended to lie on the stand, Murray quit. Bernardo’s new lawyer handed the tapes over to police. Which raises an interesting question… Assuming the situation as you describe it (My memory is shuffled too) the lawyer knows these are evidence of some sort, is he obliged to destroy them under instruction of his client, or must he disclose the evidence? if he destroyed it, would he then be destroying evidence? Even if he did ot know for sure, except the client’s (unsubstantiated) assertion and possible change of story? IIRC the defence has no obligation to disclose like the crown/prosecution does. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [May 19, 2010, 10:28pm UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/50 "2010-05-19T22:28:12Z")
> [@Walloon](#): > > In all U.S. jurisdictions that I am aware of, foreknowledge of a crime does not make one an accessory. Exceptions have been made when the victim is a child. Come to think of it, this should apply to me too, right? Just because I hear someone planning a murder, or someone brags to me about specific plans for crimes, however horrendous, I’m under no obligation to report it to anyone? I am only liable to prosecution if I act in some way that assists in the crime being carried out, and silence is not an act? Let’s say someone tells me such a plan, and I mention hearing this to my friend, and my friend goes to the cops and says, “Boyo Jim heard these guys planning to kill the judge…” They come to my door. Is there any legal way I can be compelled to provide that evidence to the police? ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [May 19, 2010, 10:47pm UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/51 "2010-05-19T22:47:58Z")
> [@Irishman](#): > > I, too, want clarification from **Oakminster**. If you happen to stumble upon your client laying out his plans to slaughter the judge, and he says to you, “Yes, I’m gonna kill him this way on this date,” you aren’t compelled to alert somebody? > > He gets arrested, mentions that you knew about it, you can’t be charged as an accessory? As a co-conspirator? Nope, I have no legal obligation to alert anybody. As long as I don’t do anything to help him commit the crime, I’m not an accessory or co-conspirator. ---
**Author:** ![Any\_Other\_Name](https://avatars.discourse-cdn.com/v4/letter/a/f17d59/32.png) [@Any\_Other\_Name](https://boards.straightdope.com/u/Any_Other_Name)\ **Post date:** [May 20, 2010, 4:44am UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/52 "2010-05-20T04:44:30Z")
Thanks **Walloon**. **Kimmy** said some states allow narrative testimony; any idea how many states? Although narrative testimony may have many uses, it’s got to look pretty bad done by a criminal defendant, especially one who admits to his lawyer that he did the crime and them insists on being put on the stand. And thanks for the other half of the answer - if narrative testimony isn’t an option, must disclose to the judge. Although that seems to present considerable difficulties as well. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [May 20, 2010, 4:55am UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/53 "2010-05-20T04:55:01Z")
> [@Any\_Other\_Name](#): > > Thanks **Walloon**. **Kimmy** said some states allow narrative testimony; any idea how many states? Although narrative testimony may have many uses, it’s got to look pretty bad done by a criminal defendant, especially one who admits to his lawyer that he did the crime and them insists on being put on the stand. The jury probably isn’t going to be told why a defendant is testifying in the narrative, or even that it is unusual. And it’s not really going to make any difference. The prosecutor is going to shred the witness with great joy. The only real concern left for defense counsel will be whether he’ll have time for a smoke during jury deliberations. Reminds me of the old lawyer joke. Jury comes back, finds Defendant guilty. He turns to his lawyer, and says “What happens now?”. Lawyer looks at his watch and replies “Now, you’re going to jail, and I’m going to lunch.” ---
**Author:** ![Koxinga](https://avatars.discourse-cdn.com/v4/letter/k/4af34b/32.png) [@Koxinga](https://boards.straightdope.com/u/Koxinga)\ **Post date:** [May 20, 2010, 5:26am UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/54 "2010-05-20T05:26:34Z")
I keep reading the title as “When is it ok for a lawyer to publicly **take a** dump on his (ex?) client” ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [May 20, 2010, 5:36am UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/55 "2010-05-20T05:36:16Z")
> [@Any\_Other\_Name](#): > > **Kimmy** said some states allow narrative testimony; any idea how many states? From _Corpus Juris Secundum_, a leading legal reference: > [@](#): > > The general rule is that testimony should be elicited from a witness by question and answer, but it is within the discretion of the trial judge to permit a witness to testify in narrative form. > > It rests within the sound discretion of the trial judge to determine whether a witness must testify by question and answer or may testify in narrative form or make a shorthand statement of the facts. A witness may be allowed to testify in narrative form for the purpose of expediting the trial, and this method of giving testimony is commonly employed when the witness is an attorney. However, counsel opposing the fact that testimony is being given in narrative form has the right to have the testimony elicited by question and answer. In at least one state, Wisconsin, an attorney may not substitute the narrative form for the question and answer form unless counsel knows that his client intends to testify falsely, and has been expressly told so by his client. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [May 20, 2010, 5:43am UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/56 "2010-05-20T05:43:55Z")
> [@Koxinga](#): > > I keep reading the title as “When is it ok for a lawyer to publicly **take a** dump on his (ex?) client” When they are two girls with one cup. I didn’t need to ask this one in GQ. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 24, 2010, 3:00am UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/57 "2010-05-24T03:00:24Z")
> [@ricksummon](#): > > [QUOTE=Northern Piper] > > Yes it does survive the lawyer’s death. OK, but what could the court _do_ about it? If Johnny Cochrane told his family that when he died, they were to have “OJ DID IT” carved on his gravestone, or if he had made a videotape before his death in which he said “OJ confessed the crime and I have no doubt he is guilty” and left instructions that it was to be released to the media upon his death, could OJ get an injunction against this? [/QUOTE] Injunctive relief in this context is tricky, because it may run into free speech protections. However, I could see the former client suing the lawyer’s estate for damages caused by breach of contract, breach of fiduciary duty, or libel/slander. I’ve never heard of such a case, so this is just speculation on my part. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 24, 2010, 3:15am UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/58 "2010-05-24T03:15:41Z")
> [@md2000](#): > > [QUOTE=Swallowed My Cellphone] > > My memory may be fuzzy on this, but I believe that Bernardo, in handwritten noes instructed his lawyer to retrieve the videos, but not to view them. The instructions said they may contain exculpatory evidence. Following instructions, Ken Murray (the lawyer) did not review the tapes for quite awhile. > > Then upon getting instructions to destroy the tapes and being told his client intended to lie on the stand, Murray quit. Bernardo’s new lawyer handed the tapes over to police. Which raises an interesting question… Assuming the situation as you describe it (My memory is shuffled too) the lawyer knows these are evidence of some sort, is he obliged to destroy them under instruction of his client, or must he disclose the evidence? if he destroyed it, would he then be destroying evidence? Even if he did ot know for sure, except the client’s (unsubstantiated) assertion and possible change of story? [/QUOTE] This is one of the most difficult ethical issues for a defence lawyer: what to do with physical evidence relevant to a prosecution? If the client says that the evidence is exculpatory in nature, and wants the lawyer to use it in defence, that’s not usually a problem. At the other extreme, if the client gives evidence to the lawyer and tells the lawyer to destroy it, and forbids the lawyer to ever mention it, relying on solicitor-client privilege to keep it secret, the lawyer would in all likelihood be committing obstruction of justice. But what about a case as in Bernardo, where the client is asking the lawyer to retrieve the evidence from a crime scene and to sit on it, without reviewing it himself to see if it truly is exculpatory? Is that obstruction of justice? The lawyer in question, Ken Murray, faced criminal charges and professional discipline charges, but in both cases was acquitted/found not in breach of his professional obligations. My recollection is that both cases turned largely on his own explanation of what he thought he would do with the tapes in the defence of his client. What caused the problem, in my opinion, was the fact that he went to a crime scene to retrieve them. On the one hand, that may sound like obstruction. On the other hand, he did so perfectly legally, since the police had vacated the crime scene, which was owned by his client, and he was there with his client’s instructions, to retrieve his client’s property. That was the kind of conduct that could certainly appear to have been close to the line of obstruction, so I can understand why he faced both criminal and professional charges. [QUOTE=md2000] IIRC the defence has no obligation to disclose like the crown/prosecution does. [/QUOTE] That’s generally correct. In Canada there are a few minor exceptions, such as giving advance notice of alibi evidence or of intention to call an expert witness, but the general rule is that the defence doesn’t have to disclose. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [May 24, 2010, 6:01am UTC](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827/59 "2010-05-24T06:01:10Z")
> [@Al\_Bundy](#): > > 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. Holy ghost of Clarence Darrow Batman! That is wrong in so many ways. When you come in to hire me, you are hiring my brain and charm and abilities to work for you, as though you stepped into my skin. I cannot tell your past secrets without your permission. Ever. The exception is prospective: I cannot help you commit a crime or tort, etc. If I know you are going to commit a crime, I can tell then and may have a duty to do so, depending on the situation. I may dump on you with permission and to defend my reputation. Assuming that OJ’s personal lawyer didn’t have permission to opine after the trial that he was probably guilty, it was way out of line for him to have done so. The late Robert Kardassian, father of the reality show TV sluts. [Previous page](https://boards.straightdope.com/t/when-is-it-ok-for-a-lawyer-to-publicly-dump-on-his-ex-client/539827.md?page=2)