Ethics and the Law: Privilege Peril - By Robert Pelton

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Wednesday, October 10th, 2018

Discussions of previous acts are generally subject to the attorney-client privilege. If, for example, a client tells his lawyer that he robbed a bank or lied about assets during a divorce, the lawyer probably can’t disclose the information. But if a client initiates a communication with a lawyer for the purpose of committing a crime or an act of fraud in the future, the attorney-client privilege typically doesn’t apply. Likewise, most states allow—or require—attorneys to disclose information learned from a client that will prevent death or serious injury. Many have a similar rule where revealing otherwise confidential information would prevent or remedy financial injury due to a crime or fraud.

This can cause serious problems. Several lawyers have been killed by clients or others. Historically, many lawyers (including John Wesley Hardin, who became a lawyer while serving time in prison for murder) have been killed. In the last 20 years alone several lawyers have been killed.

Racehorse Haynes told me that “email” stands for evidence. Be careful what you put in emails, Twitter, Facebook, Instagram, or any other social media. These things have been the downfall of many people. One lawyer sent sensitive info to his client and noticed it had a different address when he received an answer. Turns out, another person had access to the email account and read the secret message. It caused great problems for the lawyer. One District Attorney sent a message to an alleged girlfriend about kissing her behind the ear. This was discovered in an open-records request and caused great embarrassment and eventually led to the DA resigning from office.

As with all legal issues and laws, there are exceptions, including exceptions to the sacred privilege. There is Peril in the Privilege. Be careful. If a client wants another person to be with them when discussing the case, warn the client. And if the client insists, get the client to sign a waiver of the privilege. It has happened many times that a husband, wife, or best friend turns on the client. They may become a Judas and bring great harm to your client.

All lawyers should have a strong working knowledge of lawyer-client privilege. The client is the only one who can waive the privilege except in rare cases. There is complete privilege if a client tells you he has committed a crime—from murder on down. There is no privilege if a client tells a lawyer he is going to commit a crime. It sounds simple enough, but it is not. Our committee spent a day working with a lawyer on a situation where a lawyer was feeling threatened by a client. The following is one of many emails a lawyer recently received from a client. The lawyer called the hotline, and almost all members of the committee sent responses.

ARE YOU PEOPLE SO FUCKING STUPID THAT YOU DON’T EVEN REALIZE THAT I WAS WRONGFULLY CONVICTED IN ARIZONA? IF IT HAPPENS AGAIN I AM GOING TO MAKE SURE THAT THERE ARE GOING TO BE DIRE FUCKING CONSEQUENCES AND BY DIRECT I MEAN FUCKING PERMANENT.

Committee Advice to the Lawyer

The consensus was that the lawyer should file an ex-parte motion to withdraw. There was some minor disagreement as to whether this language rose to the level of a terroristic threat, but the lawyer felt very uncomfortable after receiving a long string of crazy semi-threatening emails. We told him to make a police report and get a case number in case the client should make an attempt to harm him. Lawyer Mowla and I both advised him to get a concealed hand­gun permit and carry the pistol with him at all times.

Member Comment: Point well-taken. The school-shooter warn­ings left by Nikolas Cruz, the Parkland shooter, included a YouTube message, “I’m going to be a professional school shooter.” He wrote to a woman, “I’m going to fucking kill you,” and, “I am going to watch you bleed.” In other posts, he identified his AR-15 knockoff and said he is going to use it to shoot police and those Antifa types. He was making imminent threats openly without any conditions.

This knucklehead on the other hand is talking to his lawyer about things he “wants” to do or things he “hopes” to see happen. The context and the communication method are different.

Member Comment: Both writers exhibit mental instability to me. There are warning signs that need to be investigated. Professionals should decide if he is a danger to the community. Out of our area of expertise.

Member Comment: I would say that spotting psychosis is a learned skill in our profession, especially if you read a lot of the same material that shrinks do (as many of us have). That doesn’t make us professional shrinks, but certainly learned laypersons. Representing a guy like John Battaglia forces you to hone your skills. Until I finally lost him on February 1 to the needle, Battaglia was a talking, breathing psychiatric Petri dish. It took me months and multiple stays of execution to calm him down and convince him that I was indeed acting as his advocate, that ethnically I am Georgian (and if anything, Georgian Orthodox) and heterosexual, and not the “backstabbing in-the-pocket-of-the-DA Muslim Arab ****** ***** cocksucker” that he thought I was. These were his words in a letter he wrote to the court right after I was first appointed, and I think he really believed it even though my first name is Michael and my surname clearly is not Arab or “Muslim” (whatever that means).

In situations where I have dealt with a client who did not make imminent threats as I described before, but who clearly were mentally unstable (I agree with you that counsel’s client is unstable), I counseled the client to seek mental health assistance and referred them to excellent shrinks. Luckily, the clients were just stable enough to heed my advice. Once that happened, they were in the hands of the shrink, who acted accordingly. The client perhaps got help he needed, and I didn’t have to worry about violating the attorney-client privilege.

Member Comment: If something terrible happens to the subject of his invectives and the authorities learn of these texts, someone is going to have to explain why “see or hear something, say something” doesn’t apply. Why isn’t saying he wants the lawyer to die not a warning similar to the recent school shootings—where no one said anything even though the shooters left similar warnings?

Member Comment: No duty to disclose anything to the authorities or court. The client did not make a direct threat. Wishing someone and his family dead, including at the hands of a “drunk Mexican” (?) is not the same as making an imminent threat.

Be careful of listening ears. Talking about cases in the elevator at the courthouse is not a good idea. Remember what happened to Samson when he ran his mouth and told his secret to Delilah.

The SCOTUS case below elaborates further on attorney-client privilege. Before his trial for murder, the defendant, Whiteside, discussed his planned testimony with his attorney, and said that he had seen “something metallic in [the victim’s] hand,” in contradiction to earlier statements that he had not seen a gun in the victim’s hand. Whiteside’s attorney, Robinson, had warned that he (Robinson) would have an ethical obligation to report perjured testimony to the court. Whiteside, on the stand, admitted that while he believed the victim had a gun, he did not actually see a gun in the victim’s hand. Whiteside was convicted, and subsequently applied for a federal writ of habeas corpus on the grounds that his conviction was tainted under the Sixth Amendment in that his attorney’s threat to disclose the perjury had deprived Whiteside of effective assistance of counsel.

Supreme Court decision
Nix v. Whiteside, 475 US 157

The Court ruled unanimously that Whiteside had not been deprived of his Sixth Amendment rights. The majority opinion, written by Chief Justice Burger, stated that an attorney’s duty to his client’s cause is “limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth,” and that “the right to counsel includes no right to have a lawyer who will cooperate with planned perjury.”

Concurrences by Justices Blackmun, Brennan, and Stevens stated that Whiteside had failed to show that the attorney’s actions had caused prejudice to the defendant’s trial required to sustain a claim of “ineffective representation,” as required by the case of Strickland v. Washington, 466 U.S. 668 (1984).

In a separate concurrence, Justice Brennan said that the Court is deciding only the narrow issue “conduct acceptable under the Sixth Amendment” (quoting the lower court). “Unfortunately, the Court seems unable to resist the temptation of sharing with the legal community its vision of ethical conduct.” But it is up to “the States . . . how [lawyers] behave in their courts, unless and until federal rights are violated.”

Special thanks to Joseph Connors, Michael Mowla, Jack Zimmermann, and Sharon Bass.