My lawyer confessed a crime to me!?

March 6, 2012 8:23 AM

First, I know most of you are not a lawyer and none of you are my lawyer. I understand the basic protections and requirements surrounding attorney-client privilege. I have an ethical, and potentially legal, dilemma. While consulting with my attorney recently, my attorney admitted to having committed a crime.

Without going into detail, it's likely a felony in every state and is generally considered to be morally reprehensible. It was unrelated to the reason I was meeting with him. I'm not sure why he mentioned it; it was an aside, but it was during our meeting about the reason the lawyer is representing me. (I'm certain he didn't intend to say it ... people have a habit of readily disclosing personal things to me.) The problem I have ... I'm not 100% sure if his comment would be protected by attorney-client privilege. I suspect not (70% sure), but at the same time if I were to mention it to authorities I feel this could result in unintentionally waiving my right to the privilege, which could create legal issues for me, and would certainly create a conflict of interest with the existing attorney. Ethically, I'm now uncomfortable with this lawyer, though. To further complicate, the attorney is appointed and I don't know that it would be possible to change ... or at least without running into the same potential problems. Should I just try to forget I heard anything or do what I consider the ethically right thing which might accidentally screw me over legally?

posted by anonymous to law & government (17 answers total)

Time to get a new lawyer. Also, pretty sure privilege isn't a protection for the things your lawyer says to you, but rather the other way around. No matter what the reality is here you're going to need some other lawyer to explain how to extricate yourself. You could be an accomplice to this guy by his informing you of a crime (especially if it's an ongoing criminal enterprise).

Mostly I am not a lawyer, don't play one on the internet, and no little other than you need to consult with a lawyer that isn't appointed.

You get what you pay for.
posted by cjorgensen at 8:32 AM on March 6, 2012 [2 favorites]

The privilege is yours, as the client. The client can unveil anything at any time. The client is under no legal or ethical obligation to maintain the secrecy of the attorney/client privilege.

You are free to tell anyone you want about he said. And whatever you divulge, he is supposed to maintain the rest of the privilege (though if he gets a felony arrest, he might not be too concerned with protecting your privilege).

I don't see how you can just forget something that is bothering you this much.
posted by Flood at 8:34 AM on March 6, 2012 [5 favorites]

If the attorney has done something felonious and morally reprehensible you could report it anonymously. And yes, if you really cannot afford to pay for a lawyer ask for a different one. I don't know why you would run into the same problems with another one, court-appointed lawyers are generally not criminals.
posted by mareli at 8:35 AM on March 6, 2012 [2 favorites]

You should ask for another attorney to be appointed if you are uncomfortable with this one.

As to the privilege, the attorney-client privilege belongs to the client. It's your privilege, and you decide whether and if to waive it. It applies to conversations you have with your attorney about your case. It sounds like the thing he told you had nothing to do with your case. You are not his attorney. You therefore have no obligation to keep what he told you a secret. He was your attorney when you met with him, so things you told him related to the case should still be privileged.

OP: what they said, and agree that you can report anonymously if necessary.
posted by dpx.mfx at 8:35 AM on March 6, 2012

Explore finding another lawyer. There's an ethical reason why you feel that this lawyer cannot represent you. You don't necessarily have to disclose the reason. While attorney-client privilege is there to protect you, it's also the case that you'll probably have a hard time opening the door just a little bit on this conversation, so the best course is not to open the door at all. Here's how you do that.

Speak to the person who appointed your lawyer and say that in the course of discussing your case with the lawyer, you discovered some things that make you deeply uncomfortable with having him or her represent you, but that you're not willing to disclose the contents of your conversation because you need to protect confidentiality. This is an easy setup for an inadequacy of counsel appeal, and that's something that everybody, including the judge, wants to avoid so in all likelihood they will work with you.

If they don't, call the ACLU. Tell them what you told us. Your rights to adequate counsel are important, and they will help you secure that counsel.

I suppose I should add that I'm assuming you are a defendant in a criminal matter, because you used the term "appointed" to refer to your counsel.

Good luck.
posted by gauche at 8:37 AM on March 6, 2012 [2 favorites]

Most or all states have an ethics hotline for attorneys to call. You could try to find that number and give them a call; even though you're not an attorney, they might have some ideas for you.
posted by insectosaurus at 8:38 AM on March 6, 2012 [3 favorites]

You may want to mention this to the state bar association. There's a map on this page.
posted by deezil at 8:40 AM on March 6, 2012 [2 favorites]

Also, pretty sure privilege isn't a protection for the things your lawyer says to you, but rather the other way around.

This is not true; privilege protects the whole conversion - for example, a lawyer might tell the client the case strategy, which would definitely be protected by privilege.
posted by insectosaurus at 8:42 AM on March 6, 2012

Also, pretty sure privilege isn't a protection for the things your lawyer says to you, but rather the other way around.

This is not true; privilege protects the whole conversion - for example, a lawyer might tell the client the case strategy, which would definitely be protected by privilege.

Which you can disclose. The client is the holder of the privilege; they cannot be compelled to reveal anything that the attorney has told them, such as case strategy, but they can waive that privilege at their discretion. See http://www.sgrlaw.com/resources/trust_the_leaders/leaders_issues/ttl5/916/.
posted by ellF at 8:53 AM on March 6, 2012 [4 favorites]

I would address this as two distinct things. First of all, this is a court-appointed lawyer so it's not like you have a load of wiggle room here. The fact that he is a tax cheat or a drug lord or a paedophile or whatever does not mean he is not a perfectly good lawyer. Stay focused on your immediate legal problem and resolve it so that you are free to take other action. Put on your own oxygen mask first.

When your case is concluded, you can report him to the state bar and to the police.

I know this isn't particularly "OMG POLICE AND NEW LAWYER NOW!" MeFi-flavoured advice, but assuming no party except possibly you is in immediate personal peril, it is very practical. If that is not true and you just found out your lawyer has a sex tourism trip planned for next week, call and report anonymously today.
posted by DarlingBri at 9:02 AM on March 6, 2012 [5 favorites]

Because your answer regarding waiver may depend on the rule in your specific jurisdiction, you need to check the rule in that jurisdiction. But the place to start will be the Rules of Evidence, which concern privilege and waiver. In the case of the Federal Rules of Evidence, you'd be looking at FRE 502, which explains that, among other things:

the disclosed and undisclosed communications or information concern the same subject matter

In the scenario you've described, where his revelation to you is unrelated to your case, then if you were to reveal this part of your conversation, it would not act as a waiver as to everything you and he discussed. You should check the rules in your jurisdiction.

And you've identified the second issue: if you were to reveal to the authorities that your attorney has committed a crime, your attorney is going to have a conflict of interest with you (because their representation will be "materially limited by ...a personal interest of the lawyer"), and they'll need to withdraw from representing you. But they won't know that they need to withdraw until they know that you're a witness against them.

That creates a practical problem for you if it's not easy for you to just get another lawyer, especially if you don't want your current lawyer to know you've gone to the authorities about them.

To address your question about it being "possible" to change--it absolutely will be possible to change if your attorney has a conflict of interest. In fact, it's required.

In short, you need to go, somehow, to your attorney's boss and explain that you have a conflict of interest with your current attorney and must be assigned another one. If this is in the context of an attorney being appointed, I'm afraid I don't know the practical consequences to how all of that plays out. But to sum all of this up: (1) the a/c privilege protects you so you can waive it (ie, you're allowed to tell authorities); (2) if you do tell the authorities, it will not waive the privilege as to the rest of the things you've discussed with your attorney that are unrelated to his revelation of the criminal act (check if this is true in your jurisdiction); (3) once you are a witness against your attorney regarding the crime they've committed they cannot represent you as they'll have a conflict of interest (which you presumably will not waive); (4) it might be a mess to turn all of this theoretical analysis into a practical solution, but at least now you have an analytical framework from which to start. Good luck.
posted by MoonOrb at 9:06 AM on March 6, 2012 [2 favorites]

One thing to consider about this felony your lawyer mentioned: has the statute of limitations expired? If I recall, there is no limit on murder, but there is for most stuff.

And yes, if possible, try to get assigned to another lawyer. (Maybe not specifying wht the problem is: just say you don't get along well or something equally bland.)
posted by easily confused at 9:40 AM on March 6, 2012

Forget it.

If you're in a circumstance where you're being charged with something and are relying on a court-appointed lawyer then you really are not in a prime position to get further involvement with the authorities. That puts aside the fact that your lawyer might well have suffered repercussions from this action or it might be beyond statute or it might be some foolish falsehood to try to bond with you over.

Hell, maybe your lawyer really doesn't want to be your lawyer and figures this is a way to get you to ask to have him/her replaced. Which might be a good argument for asking for a replacement but personally I'd avoid rocking the boat. If you are determined I'd simply state that your lawyer revealed things to you that made you uncomfortable and made you question their ability to represent you.

I'd certainly not burn them before your case is done. Whoever they appoint you to replace him/her could be friendly with them. And if they're morally challenged enough to break the law and blab to a client about it then they may have friends who are similarly challenged and willing to half-ass your case.
posted by phearlez at 9:58 AM on March 6, 2012 [1 favorite]

Hi there. I'm an attorney, licensed in two states. I don't know where you are located, so I cannot tell you whether I'm licensed in yours. Consequently, I cannot give you legal advice. However, I would be happy to talk with you in general terms, based on my experience, about your situation. You can contact me via MeMail, or if you'd prefer to remain anonymous, there is an email address in my profile.
posted by cribcage at 10:01 AM on March 6, 2012 [1 favorite]

Should I just try to forget I heard anything or do what I consider the ethically right thing which might accidentally screw me over legally?

I believe you should try to forget you heard anything and don't concern yourself with what the attorney did or didn't do that may have been criminal, or what he purportedly confessed to you.

Several points to consider:

(1) Clients routinely try to get their appointed counsel removed from their cases, for many reasons -- because of a perception that appointed attorneys are not as good as retained counsel; perhaps because the client has an unreasonable expectation about the amount of hand-holding the attorney will do; perhaps the client thinks the attorney isn't fighting hard-enough, etc. Courts see this all the time. Courts also see clients engage in deception in order to get an attorney removed. So: Do not expect the court to believe you when you say the attorney confessed a crime to you. There's a good chance, since you were appointed counsel, that you are charged with a criminal offense, so it is borderline implausible that an attorney would confess a crime to someone he barely knows and who is charged with a crime him or herself. Many appointed counsel are in front of the appointing judge every day, they know them well, so if this becomes a matter of your credibility versus the attorney's, the attorney will be believed virtually 100% of the time. So, I doubt you will be believed if you go to the court (or anyone else).

(Semi-relevant story: I have a colleague who was representing a very violent gang member, and the gang member threatened to kill my colleague (his lawyer!) repeatedly throughout the trial-level proceedings. The judge refused to relieve my colleague from representing the defendant, reasoning that if you could get an attorney off your case by threatening to kill your attorney, it would be "open season" for death threats against attorneys. Judges are used to defendants doing all kinds of crazy stuff to try to get new counsel. You will almost certainly not be believed.)

(2) It is not at all clear what the extent of privileged attorney-client commmunications are, without knowing your state, and then it still might be a nettlesome question. Courts have recognized a policy interest in encouraging free, unfettered discussion between attorneys and clients. It is not necessarily the case that only you hold the privilege. This is a fact-specific legal question that you probably should not be focused too much on, since you appear to have your own legal problems to worry about.

(3) Without knowing more, it seems possible that the attorney could argue that he was kidding, that he was speaking rhetorically, that you misinterpreted what he said, etc. Do not count on the attorney to say, "Oh, yes, I did run over that child while I was drunk several years ago, I know that case is unsolved, now you've got your man." The attorney absolutely will not do that. It would be really easy to convince the court, in lots of circumstances, that the attorney was speaking hypothetically and that you are just too unsophisticated to understand or are looking for a way to screw with an attorney you don't like for whatever reason.

(4) Think ahead to what the fallout and repercussions will be if the judge refused to relieve your counsel (and it is highly likely the judge will NOT relieve your counsel). Will that attorney go to the limit of his abilities for you? It is possible to do a perfectly competent job, but not go the extra mile that sometimes makes all the difference. Will you be able to count on this attorney to do everything possible in your case? He's not obligated to make herculean efforts on your behalf; he's just obligated to perform with a reasonable level of competence. Often we attorneys DO make herculean efforts on behalf of our clients, because we believe in the client, because we believe in the case, because we believe in the legal issue, etc. But I certainly wouldn't expect an attorney who you reported for purportedly "confessing a crime to you" to do anything more for you than what is strictly required by the standards of professional competence. Be careful.

(5) Judges look with extreme skepticism upon complaints made by defendants against their attorneys. I've seen this too many times to count, judges who say they don't even read defendant correspondence. Defendants say ALL KINDS of crazy stuff about their attorneys, and judges are so jaded by the profound idiocy and amorality, and manipulativeness of the defendants they see pass through their courtrooms, that there is virtually no chance you will be believed.

Bottom line: You don't know what's going to happen, but there is a HUGE chance that you will screw yourself by reporting your attorney or expecting that this will get the attorney removed from representing you.
posted by jayder at 11:18 AM on March 6, 2012 [5 favorites]

I came in here to say what jayder said. So... what jayder said.
posted by mikeand1 at 12:00 PM on March 6, 2012

IAAL, IANYL.

Please listen to the commenters above who have suggested that the issue of waiving privilege is more nebulous than it may seem. In my jurisdiction disclosing a privileged communication - on either side of the communication - may be interpreted as waiving privilege over other similar communications over which the same privilege is claimed.

There are a number of factors that go into the consideration and it's very fact-specific, but the point is: be careful about disclosing privileged communications.

If you are needing a frame of reference to decide what to do next, you may want to ask yourself: so what? I don't mean to minimize your concern, but try to focus on what this revelation actually means for you. Does it affect your lawyer's ability to represent you in any concrete way? Does it undermine the advice that the lawyer is giving you? If so, are there ways to mitigate this that don't risk some of the negative consequences jayder pointed out? It may ultimately be that this issue, disturbing though it may be, is of little or no consequence.
posted by AV at 6:35 PM on March 6, 2012