This is kind of wandering into opinion territory, so if a mod wants to move it that’s fine with me.
Okay, a couple more questions and I will consider this answered. Thanks for your assistance everyone.
The last scenario: let’s say that a lawyer has a client who did something really terrible, and said so in confidence to the lawyer, and provided some additional evidence to establish that he did indeed do this terrible thing. If you want something specific, let’s say he set off a nuke in LA and killed a couple of million. Or whatever horrible thing you want.
The lawyer is outraged by this and decides to go public with the evidence, whatever the personal costs. The lawyer accepts that disbarment is inevitable, and possibly prison. So the lawyer resigns and goes to the prosecutor, and the defendant faces trial with a new lawyer.
Would a judge allow testimony from the first lawyer, or evidence obtained based on the first lawyer’s statement to the prosecutor, knowing how it was obtained? If so, what would be the grounds for excluding such evidence?
A quick google suggests he’s talking about a lawyer named Staple Hughes, in a matter discussed here and here with links to other sources. Interesting case.
Most likely not, assuming there’s an objection. The client owns the privilege, and can assert it to prevent the lawyer’s testimony, or other unauthorized disclosures being admitted against him. Fruit of the poisonous vine, I think.
That’s the origins of the privilege, actually - it was an evidential rule that the courts would not allow a lawyer to testify in court about matters covered by solicitor-client privilege. It didn’t originally apply to matters that were uncovered out of court, but the courts in Canada have gradually expanded it to include information obtained by third parties in breach of the privilege. So in this hypothetical, I would assume the courts in Canada would not allow the lawyer to testify, and would also rule that the lawyer’s statements to the Crown would be inadmissible, even if not made in court originally (setting aside a hearsay objection, which might also be raised.) How far they would extend this principle, to evidence uncovered as a result of the breach of privilege, I’m not sure.
There’s an urban legend that claimed that Johnny Cochrane had the words “OJ DID IT” carved on his gravestone. This is, of course, not true, but what if it were? Does attorney-client privilege survive the death of the attorney, and if so, what could the court do about it? Has there ever been a real case where something like this happened?
Yes it does survive the lawyer’s death. One of the duties of a lawyer who is winding down his/her practice is to ensure that all his/her files are properly disposed of, consistently with solicitor-client privilege. If the lawyer dies while still practising, the other lawyers in the firm, or the Law Society if there are no other lawyers associated with the deceased lawyer, have to attend to that. It’s the client’s privilege, not the lawyer’s, so the death of the lawyer doesn’t affect it.
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.
It came out in court that he was setting up his (ex) wife; she claimed to be a dupe of his and made a deal with the prosecutors as an abused and coerced spouse, while the tapes proved she had been an active participant. The prosecutors put a gag order on her deal until the next trial, allegedly to give Bernardo a fair trial but really so we could not know what idiots they had been. Bernardo went through a long public trial even though guilty, just to make sure everyone knew what his wife did.
In return for being exposed as idiots, they charged the lawyer with possession of child porn, IIRC. That charge got tossed, but the moral is an irate prosecutor is a dangerous animal, especially when you prove they are stupid and wrong.
So Bernardo’s lawyer not only held the confidence, but also held physical evidence uncovered as a result of that confidence until it was almost time for the trial.
In reply to the original post - IANAL but I presume the lawyer is allowed to discuss whatever is already in the public record, even if it duplicates information mentioned in confidence?
However, saying “that is when I found out he had been lying to me…” sounds more like he is divulging the confidence by explicitly confirming what his client had told him in confidence, unless the client already stated “I told my lawyer that…” However, it’s hard to construct a scenario that says “I decided he had been lying to me” that is not directly revealing confidential discussions.
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?
It’s worth pointing out that the vignette mentioned in the OP was immediately followed by the client saying pretty much the same thing - “Yeah, that’s when we knew the jig was up,” or something similar.
a) this is the funniest paragraph I’ve read this month
b) it would appear that the bolded bits are contradicted in the model code that the lawyer can break confidentiality:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services
I’m not meaning to play “gotcha”, I’m just curious if you could clarify the apparent contradiction.
For the first, unless they make it clear that they are talking about a specific crime they are going to do, it’s fine. What would not be fine is: “As soon as this trial is over, I’m going to shoot that witness against me.” Saying that in the future they will probably continue to steal bikes isn’t the type of thing that you need to report, by which I mean you can’t report.
The second thing is borrowing the criminal code. I wouldn’t let a client do that. That’s because they are all online for free and books are expensive. However, it’s fine to advise a client on the legality or illegality of certain actions and even to advise them on the best way to violate the spirit but not the letter of the law. And giving them the criminal code isn’t anything at all; it’s all public information.
The model code says that I “may” break confidentiality for the listed reasons, not that I am required to do so. If I don’t report anything, I’m not in any trouble with the Bar. If I do choose to report something, it has to be for one of the listed reasons, or I could be in big trouble.
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?
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?