THE LAWYER CLIENT PRIVILEDGE .........BY BOB SMITH 
Monday, March 29, 2010, 09:01 AM
Posted by Administrator
On Sunday, after I arrived back from my ski trip, I hauled the accumulated stack of New York Times in from the front gate and dumped them on the floor by the fireplace. (Note: Yes, you can get the Times delivered to your house...even here in Northern Wyoming---though it doesn't exactly get here every day...or at 6:00AM-------...and, no, I don't read the stuff about New York...but that is usually only a few pages.) On the front of the Saturday's Business Day section, there was a color drawing of two houses supported by two cranes and the story was going to be about the governments new plan to help people keep their houses. I am going to decipher this story (somehow, because it sure looks to me like the same old crap where useful, substantial mortgage modificaitons are few and far between) and, after I decipher it, I am going to report back.

In the meantime................the lawyer/client priviledge.

Everyone thinks that you can walk into a lawyers office, tell them you killed a man, and that the lawyer won't call the cops and have you arrested. And, everyone is right.

Everyone thinks that they can walk into the lawyers office, have the lawyer help them fill out some kind of legal form where they've got to report their last years' income, tell the lawyer that they lied on their last year's taxes and want to use the number they used on their taxes on the form they are filling out, and have the lawyer nod his/her head and say "sure". These people are wrong.

Anything you did in the past is a secret and the lawyer can't tell anyone...even after you die (the after-you-die-thing I don't think is totally settled........the can't-tell-while-you-are-living thing is).
-Lied on your taxes.........priviledged.
-Killed your mother's lover......priviliedged.
-Dumped motor oil into a pool of baby seals....priviledged.

The lawyer might think you are scum for doing these things but he/she can lose his/her ticket to practice law if they tell and nothing you said to the lawyer (alone in his/her office) can come into evidence against you at trial. Period. Though, otherwise (and, ignoring for the moment the husband-wife, preist-penitent, doctor-patient, psychotherapist-client, accountant-client priviledge...if they apply), like they say on TV "Anything you say can and will be used against you in a court of law."

On the other hand, if you are about to commit a crime:
-Sign a legal paper the lawyer knows is fraudulent;
-Put on perjured testimony at trial;
-Tell the lawyer you are going to go kill the witnesses against you...........
these things are not priviledged and the lawyer probably has a duty to call the cops or tell the court.

I once called the Florida Bar Ethics Hotline (a free service to Florida lawyers who want answers to ethical questions) to ask whether I had to turn in a bankruptcy client who let it slip...after we filed his case...that he had $35,000 in the bank that he didn't sort of happen to tell me about. The Ethics Hotline lawyer told me that I only had to turn him in if I was absolutely sure he was lying. So, if I thought he might be kidding around, or bragging...I didn't have to turn him in.

He had the good sense to fire me and hire another lawyer. The other lawyer assured me that they had disclosed the extra money (and, probably blamed "the mistake" on me) and the Ethics Hotline said that was good enough.

This does not mean that lawyers are scouting around for things to get people in trouble about:
-When a local lawyer told me "I have my wife on my payroll...even though she doesn't work for me...so that I can lease her Mercedes through the business." I thought to myself "Why would you tell me this?" But, I'm not the cops and he wasn't a client about to try to involve me in a conspiracy to commit tax fraud.
-When a local lawyer told me "Last year was a good year...and that's not including the cash." I thought to myself "Are all lawyers stupid braggers?" But, of course, the vast majority are not.

Criminal clients are treated differently than clients in civil cases. In the old days, you could put a criminal client you knew was lying on the witness stand and let them testify to their lie but you couldn't actively question them. So...
Q-So, tell me, Mr. Jones, what happened?
...and that is all you were supposed to ask.

vs.

Q-So, Mr. Jones, you went to the Steak and Shake and what did you see?
Q-And, after you saw that, what happened next?
Q.And, after that happened, what did you do with the gun?

I heard there is a new rule about clients-you-know-are-lying testifying. I figure it is worse than the old rule and that now you probably can't let your client testify at all..or you've got to call your own client a liar. I don't really know what the new rule says and I have promised myself never to read it.

My first Jury trial ever was a DUI. Here are the "facts"....
-It was dusk and an inky haze had fallen over Lantana Rd. Across the street from a convenience store set in the middle of a small strip shopping center on the South side of the road, a police officer sat in his patrol car facing South.
-A small Japanese car drove down Lantana Rd. from the West and the police officer noticed it and watched it. The car turned into the shopping center and parked outside of the convenience store. The three young, scruffy men in the car got out and went into the store.
-The police officer drove across the street and then waited outside the store for the scruffy men to finish their business and leave. As they walked out, he grabbed hold of my future client.... who I will call Harry.
-He believed that he had seen Harry get out of the driver's seat of the car and that Harry had been driving erratically down Lantana Road. He thought Harry's breath smelled of alcohol and that he might be "impaired". So, he thought that he ought to administer the roadside sobriety tests to Harry (follow instructions, finger to nose, etc).
-Harry "failed" the tests, was hauled in for a breathalyzer test, scored high on that and was arrested for DUI.

I was with the Public Defender's Office at the time, I got appointed to Harry and his DUI and off we went. Before trial, Harry told me that while he couldn't locate one of the guys, Paul, who was in the car with him...he was going to bring the other guy, John, with him to court to testify that Paul was driving the car...not Harry.

Almost half a century later, I can remember sitting on a wooden bench outside the courtroom door during a break in Harry's trial and talking with John about his upcoming testimony. This is what he said: "Harry was really driving the car but I am going to say that Pual was"."

I told John that he was..I was sure..a great guy. But, that I wasn't allowed to put on witnesses who I knew were going to lie so, thanks for coming.. and, now, feel free to leave. John left.

Since Harry had never told me that he was lying, I had no problem putting him on the witness stand. He testified that Paul was the driver...that the cop had made a mistake.

The jury found Harry not guilty. ...It had been, after all, a gloomy Lantana night.....and Harry did come across as a very nice guy....so, who really knew who was driving the car?

I certainly didn't.
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