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.
As the Gilbert Law Summary says,
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.
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?
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?
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.
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.
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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.
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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.
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.
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?
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.
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.
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.”
I keep reading the title as “When is it ok for a lawyer to publicly take a dump on his (ex?) client”
From Corpus Juris Secundum, a leading legal reference:
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.
When they are two girls with one cup. I didn’t need to ask this one in GQ.
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.
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.
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.
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.