Myths about lawyers

August 28, 2012 11:13 AM

What are some common myths about the lawyer-client relationship? What common expectations from clients are unethical if the lawyer were to perform them? For example, loaning money to a client against a future settlement.
posted by Ardiril to law & government (27 answers total)

Clients in criminal matters can't confess their guilt to lawyers and then expect the lawyer to deny their guilt to the court. Once they tell their lawyer they're guilty, the best the lawyer can do is try to cast reasonable doubt on the prosecution's case.
posted by Dasein at 11:16 AM on August 28, 2012

Sharing fees with a nonlawyer is a big no-no most clients don't seem to know about.

Also, clients usually don't see the conflicts of interest that bar a lawyer from representing two seemingly aligned people. If there is a potential conflict between the clients, and there often is, a lawyer can't represent all the parties.

Many people also don't seem to know that a lawyer cannot contact a represented party directly.

Actually, the more I think about it, the more I realize that most of the ethical rules that bind the legal profession aren't well known or understood by non-lawyers.
posted by bearwife at 11:34 AM on August 28, 2012 [1 favorite]

The requirement of handing the lawyer a dollar to create a lawyer-client relationship is fictitious (Hollywood?).

A lawyer can't say she "specializes" in anything (this is one of the many advertising rules I have forgotten, but they're not that client-y).
posted by Pax at 11:39 AM on August 28, 2012 [1 favorite]

1) I will not help a client lie to the court. In fact, if I think a client is lying, I am ethically obligated to tell the court. So if they decide to take the stand and start lying, don't be surprised if I stand up and say so.

2) I will not help a client conceal evidence. I am not a safety deposit box, and physical objects--including electronically stored information--are not privileged just because it is given to me. If a client has evidence related to the case, I will tell the other side about it. And if I find that a client has been withholding documents, I may actually tell the court that.

3) Just because a client tells me something does not mean that said thing is suddenly privileged and protected. Conversations with one's attorney are privileged, but the subject matter of those conversations is not.

4) You can waive the attorney-client privilege in a number of ways, the most obvious of which is talking to other people. If you have a conversation with your lawyer, and there's someone else in the room who isn't either a lawyer or a fellow client, that person can be put on the stand and made to testify about the contents of your conversation. Heck, once it's established that there was someone else in the room, you can be asked about that conversation.

5) Divorces can't be worked on a contingency basis. It's all fee-for-service, either billable hours or a flat fee.

6) Duties to one's clients do not end when the matter at issue is resolved. Confidentiality and loyalty are ongoing obligations. So if I represent client A in a case, and then client B wants me to sue client A at some point down the road, odds are very good that I won't be able to represent client B. I know too much about client A and would have an unfair advantage. Similarly, if I represent client A, and some time later client A sues client B, I may not be able to represent client B there either.

7) Most lawyers take their ethical obligations pretty seriously. This is not just about altruism or professional pride, it's a matter of surviving in what is actually a pretty tight-knit profession. If you take ethical shortcuts, the legal community will hear about it fast. Getting a reputation with the local bench as a snake is not something you can afford to do.
posted by valkyryn at 11:47 AM on August 28, 2012 [8 favorites]

Including a lawyer in the CC list of an e-mail does not automatically bring the communication within the attorney-client privilege. Big companies, in particular, often end up spending millions of dollars in litigation costs over that one.
posted by The World Famous at 11:51 AM on August 28, 2012 [1 favorite]

(I am an attorney but I am not your attorney. This is not legal advice regarding the law of lawyering. If you are concerned that an attorney may be acting unethically, contact the appropriate state disciplinary authority.)

"Ambulance chasing" (i.e. handing an injured person a business card) and other forms of direct, in-person advertising is generally not allowed.

Contigent fee arrangements have a lot of rules. For example, many states regulate how large the lawyer's cut can be, and a lawyer can't take a criminal case on a contingent basis at all.

The duty of confidentiality begins even before the attorney-client relationship does (i.e. an attorney can have a duty of confidentiality toward a prospective client), and that duty remains even if the attorney ultimately does not represent the client.

A lawyer can't say she "specializes" in anything

This is complicated and varies from state to state. For example, Missouri lets you claim that you're a specialist as long as you include a disclaimer stating that "neither the Supreme Court of Missouri nor The Missouri Bar reviews or approves certifying organizations or specialist designations." Missouri Rule 4-7.4. However, one can say that you are a patent attorney or a proctor in admiralty without such a disclaimer. On the other hand, some other states allow claims of specialization (e.g. Texas Rule 7.02).
posted by jedicus at 11:53 AM on August 28, 2012

Thanks, jedicus, one of those cases where you can't make a blanket statement based on the model rules (which is important here - some of these answers might vary a little).
posted by Pax at 12:03 PM on August 28, 2012

valkyryn, I'm confused about what this means, would you mind elaborating?

3) Just because a client tells me something does not mean that said thing is suddenly privileged and protected. Conversations with one's attorney are privileged, but the subject matter of those conversations is not.

How is the subject matter of a conversation different from the conversation itself?
posted by Kimberly at 12:06 PM on August 28, 2012 [1 favorite]

How is the subject matter of a conversation different from the conversation itself?

It's the difference between "we spoke about her divorce" and "she told me she had been cheating on her husband for years."
posted by prefpara at 12:15 PM on August 28, 2012

aha! That totally makes sense. Thanks prefpara.
posted by Kimberly at 12:19 PM on August 28, 2012

How is the subject matter of a conversation different from the conversation itself?

It's the difference between "we spoke about her divorce" and "she told me she had been cheating on her husband for years."

I'm a little confused too, and hope that jumping in isn't a derail, because we're clarifying the same myths that the OP is looking for:

At least according to my bar exam materials, there's no compelled disclosure of "either the fact or the content of the communication". Which would seem to cover the subject matter, would it not?

We obviously do have the standard non-privilege for everything else that was mentioned, and includes communications that weren't intended to be confidential, or that I learned about through other means.

I'm in Ontario, so it might be a genuine difference in the law.
posted by Lemurrhea at 12:23 PM on August 28, 2012

One example where this might come up is on a privelege log, which is a list of documents that you refuse to give to the other side during discovery because you claim that they are privileged. It's standard to individually list all such documents and often provide some information about them, and doing so does not waive the privelege. So you might see a privilege log entry that looks like this:

June 19, 2005 - Email to L. Lawyerson, Esq. - Subject matter: advice re possible merger.
posted by prefpara at 12:33 PM on August 28, 2012

How is the subject matter of a conversation different from the conversation itself?

Picture the following conversation:

Q. So what did you tell your lawyer about the night of April 21?

A. Objection. That's privileged. The defendant won't talk about that.

Q. Okay. What did you tell the witness John Doe about the night of April 21?

At this point, no objection can issue. Clearly, the defendant talked about the events of April 21 with her lawyer. That conversation is privileged. But if the defendant said exactly the same things to someone else, that conversation is not privileged.

The bottom line is that if you want things you say to your lawyer to stay privileged, you can't talk about them with anyone else.* Having that conversation does not magically shield information from discovery. Tons of information that I discuss with my clients wind up going on the record. That's pretty routine, actually. I mean, heck, I know my clients' birthdays and addresses, but the fact that I know them doesn't make that information privileged.

Similarly, the fact of a conversation isn't generally privileged. I was at a deposition last week where the deponent--my client--said at one point "Oh, I didn't actually learn about that until a conversation I had with my lawyers." I immediately followed up with "And that's all we've got to say about that conversation." The other attorney asked a few questions just to make sure that we were really talking about a privileged conversation (who was there, when it happened, etc., all perfectly acceptable) but that's all the farther she could go.

*There are other privileges, but fewer than most people think, and none are as strong as the attorney-client privilege. Insurer-insured is close, as is spousal privilege, but that's about it.
posted by valkyryn at 12:38 PM on August 28, 2012 [3 favorites]

I feel like the biggest and most persistent myth that the general public holds is "You're a lawyer, so you know about [random subject]."

In the last year alone, I've been asked about: medical malpractice, incorporating a small business, libel, parental support, employment, inheritance, and mortgage fraud. I don't practice. I'm not even licensed. Does that stop people from assuming that I know something about their random ass issue? Hell no.
posted by jph at 12:43 PM on August 28, 2012 [1 favorite]

What about the idea that one can prevent ones spouse from obtaining representation by having consultations with all the divorce lawyers in town?
posted by endless_forms at 1:07 PM on August 28, 2012

What about the idea that one can prevent ones spouse from obtaining representation by having consultations with all the divorce lawyers in town?

Even assuming that had merit, one would need to consult every divorce lawyer in the state, because attorneys, even in family law, routinely practice outside of their counties. I just did a deposition clear on the other side of the state. Spent almost seven hours in the car last Wednesday. Divorce lawyers may have a slightly more circumscribed geography than my firm does, but there's absolutely nothing to prevent one from bringing in a lawyer from out of town.
posted by valkyryn at 2:05 PM on August 28, 2012

What about the idea that one can prevent ones spouse from obtaining representation by having consultations with all the divorce lawyers in town?

That is a tactic I've seen used successfully, and while valkyryn is obviously right -- you can get a lawyer in a different town, of course -- it is a pain in the ass and more expensive, particularly when you live in a small or remote city.
posted by Pomo at 5:20 PM on August 28, 2012

Including a lawyer in the CC list of an e-mail does not automatically bring the communication within the attorney-client privilege. Big companies, in particular, often end up spending millions of dollars in litigation costs over that one.


Do you have a cite to a general rule?
posted by Napoleonic Terrier at 7:30 PM on August 28, 2012

1) I will not help a client lie to the court. In fact, if I think a client is lying, I am ethically obligated to tell the court. So if they decide to take the stand and start lying, don't be surprised if I stand up and say so.


This is absolutely not the case with criminal attorneys/clients. (For an example, take a look at Comments 7-10 of Mass Rules of Professional Responsibility Rule 3.3). First of all, let's assume you 100% know your client is going to perjure himself (which is very rare indeed given that clients tell 1000 different stories and you never know which one is the truth). There are two ethical options (1) withdrawing from the case WITHOUT telling the court your client is lying liar. This is a tough route. Judges don't like to let clients withdraw without a good reason and when you say it's because of the rules of prof responsibility they are going to know what's up. (2) letting your client get up and testify in narrative fashion. This will be EXTREMELY obvious to the judge and the jury will prob be clued in that something is off as well.
posted by murfed13 at 7:32 PM on August 28, 2012

Do you have a cite to a general rule?

All of the rules in the pertinent jurisdiction that apply to any privileged attorney-client communication apply in that situation, as well as all the conditions that would make the communication fall outside the privilege, including, but not limited to, the purpose of the communication, whether any parties not within the attorney-client relationship are also part of the communication, etc.
posted by The World Famous at 7:37 PM on August 28, 2012

I found some cites for my question above regarding the CC list, but haven't been able to read the opinions:

CC-ing the attorney on an e-mail sent to another person (by itself) neither triggers application of the privilege (Sokol v. Wyeth, Inc. 2008 WL 3166662 (SDNY 2008)), nor does it disqualify the communication (In re New York Renu with Moistureloc Product Liability Litigation, 2008 WL 2338552 (DSC 2008)).
posted by Napoleonic Terrier at 7:38 PM on August 28, 2012 [1 favorite]

(I've written a lot of briefs on the issue, but don't have them easily on hand at the moment.)
posted by The World Famous at 7:40 PM on August 28, 2012

I just wanted to add that high level people will CC attys on every dumb thing in an effort to claim privilege.
posted by murfed13 at 7:40 PM on August 28, 2012 [1 favorite]

Thanks, guys! I asked this totally out of curiosity. Great answers.
posted by Ardiril at 8:07 PM on August 28, 2012

This is absolutely not the case with criminal attorneys/clients.

Well... Kind of. It works differently, to be sure, but the rule is still that if you think you're client is lying you can't just sit there. You are ethically obligated to do something about it, even if it's not announcing to the court that the client is perjuring himself. And other states have less generous rules about this sort of thing than Massachusetts seems to.
posted by valkyryn at 8:09 AM on August 29, 2012

"I have a small claims case. I'm looking for a law student to represent me pro bono. It'll give you experience and be great practice for real lawyering. I'll cover any expenses."

Brazen solicitation of the unlicensed practice of law is surprisingly commonplace. Once, I saw a variant of the above in a child custody case. Appalling.
posted by Clandestine Outlawry at 8:16 AM on August 29, 2012

Do you have a cite to a general rule?

It's not a general rule about CCing, but attorney-client privilege applies to a subset of communications between the attorney and client. One of the contours of the privilege is that the communication must be of legal advice by the lawyer or a communication from the client soliciting advice.
posted by benbenson at 11:04 AM on August 29, 2012