THE LAWYER-CLIENT PRIVILEDGE-PART II 
Tuesday, December 9, 2008, 08:58 AM
Posted by Administrator
Lawyers are a pretty honest bunch, I think, and nobody wants to lose their ticket (their license to practice law). So, it is awkward when potential clients come in and ask (in a divorce case or a bankruptcy or after a money judgment gets entered---where the client's assets are an issue) "Can I just give my jewelry to my mother?" No, you can't. The jewelry will still be your jewelry because you don't really intend for your mother to own it (and there is another, similar, answer if you say you really do want your mother to own it). And, if you give the jewelry to your mother because you want to hide it from creditors, or your soon-to-be-ex spouse, or the other side of a case, you probably are not about to help your case much. Will the transfer to your mother lead you to lie under oath? Is the end result of "giving" the jewelry to your mother going to end up up being a crime? (Maybe the jewelry isn't worth as much as you think and the whole issue isn't worth agonizing about. Certainly, there is a different solution to the problem.)

I have written before about the difference between old crimes......committed before the client sees the lawyer (totally confidential) and new crimes......crimes the lawyer knows you are about to commit (most commonly, perjury...and totally not confidential).

New crimes....for example, when you tell the lawyer you have $100,000 in the bank but are about to swear that you have only $1...aren't covered by the priviledge. And it makes sense, the lawyer shouldn't be involved in the client's plan to defraud the court or the party on the other side. We aren't going to tell you how to hide your jewelry from creditors and we aren't going to help you put in place your plan to be a cheat...at least not knowingly. The problem is usually easily solved, the client gets reminded that the lawyer can't participate, that he/she will get caught and sent to jail, and the client gives up the idea.

The bigger problem is that some clients tell lies or forget things and the lawyer finds out later. A few months ago, I went to a "341 Meeting in a Bankruptcy". One of the questions in the bankruptcy petition, under oath, is whether any property was transferred (bought, sold, traded) in the past year. My client's answer to the question was "no". At the Meeting, the Trustee asked whether my client had owned property in the past year. His answer was "yes", he had a hourse and he sold it. The Trustee looked at me.......I sank down in my chair. I should have caught this when we did the Petition...I should have sensed there was a house...I should have smelled the house. I have been doing this for 25 years and there is no excuse. I am supposed to catch this stuff.

Thanks to this crappy market, the client's house had been sold without realizing one penny for him, so, no problem...it was obvious he had just forgotten and that he hadn't intended to lie or defraud anyone....except that I felt stupid. But, how about a client who said he had $1 in the bank but really had $100,000 and the lawyer finds out after the $1 had been sworn to? Here is what we have to do:

1) Tell the client that they have to advise the court of the mis-statement and
2) Advise the client that if he/she does not disclose the mis-statement that (as the lawyer from the Bar Ethics Hotline told me not too long ago) the lawyers obligation of honesty to the court "tumps" the client's priviledge.

In a civil case, the lawyer is obligated to rat out the client. And, if the lawyer doesn't rat out the client he/she is in violation of the ethical rules and, in addition, will probably be deemed to have joined up with the client's conspiracy to defraud the court and/or the other party. This would be criminal and the client and the lawyer can go off to jail together.

I wrote previously about how this applies to criminal cases. It is a little different. It is rare for a criminal defendant...especially in a serious case...to admit to the lawyer that they did it. Criminals tend to be smarter than we think and they know that as long as they claim innocence, their lawyer will work day and night to make their charges go away. No innocent man or woman should have to spend one day in jail. For defense laywer, it is a moral issue.

On the other hand, once they admit they are guilty, human nature takes over and it is not the moral issue for their lawyer that is once was. The lawyer will still try real hard, but now there is something missing: innocence. I remember years ago (not my case)...a young man of about 18 was charged with stabbing his girlfriend to death and leaving her in her upstairs apartment lying in a pool of blood. He swore to his lawyers he was not guilty and they worked day and night to save him.

One day, he changed his story and admitted he stabbed her. They pled the case out within the week. Did it plead out so quickly because the lawyers lost their spark, because they no longer feared long, sleepless nights regretting that they didn't do all they could to get this guy out of jail? Who knows? Still, I understand why criminal defendants (almost) never admit their guilty (and, always keep in mind: MANY REALLY AGREN'T GUILTY).

Note: My only link to the murder case came one Saturday morning when I was at the Gun Club Road jail seeing clients. I wandered throug the court room at the jail to see what was a going on (Saturday morning first appearances...whoever was arrested the night before) and there was the murderer's other girlfriend. She had been arrested for slipping him marijuana during a visit at the jail. I told the judge that I knew her (which I did) and that she was a nice, local girl....and she got released from jail to await her trial...probably nothing to do with what I said.
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