If you are a criminal defense attorney what would you do?
You are at your office, and one of your clients walks in, and places a gun, that has been fired on your desk. What do you do with the gun? Also this same client has knowledge of a defendant that you defended, and that client, the one you defended was found guilty but the client that gave you the gun knows he or she is innocent. Now that you have information Cialis about the wrongfully imprisoned client from another client, morally, and ethically speaking should you, or would you break the attorny-client priviledge? Would you litigate the attorney-client priviledge clause? Assume you defended the jailed client first, for armed robbery and first degree murder and he or she is on death row.
Tagged with: attorney • Criminal • Defense • would
Filed under: Attorney FAQ
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You could accidently have this gun laying on your desk when a certain detective comes over to discuss something. OOps, isn’t that the gun in the so-and-so shooting? Well, I can’t discuss that, but I will be eating lunch in today, so if you were to call for a warrant that wouldn’t be too inconvenient. Hmm, okay, I guess I’ll just have to do that winkie wink wink.
You cant drive to the police station but you cant keep the gun either. You have to send it to the police anonymously. As for the other client your question is convoluted and hardly intelligible. BUT it is never moral or ethical to break privilege. You’d have to try and anonymously tell the police that there may be a different suspect. You also cant represent the other client because it would be a conflict of interest. You could try to convince the gun client that they should come forward but you cannot make them come forward.
You cannot break privilege unless you know about a future crime that will be commited and the only way to prevent it is to break privilege. You should definitely clear up prior innocent client on death row. Keep the gun locked in your safe or in the safe of a colleague or judge. The gun is not privileged because it is evidence in a crime. How you got possession of the gun and who gave it to you is privileged. Clear up the innocent case, then litigate to protect the attorney-client privilege. If you lose and there is a court order for you to reveal your source, you can then reveal the truth while not violating the privilege. Very complex, if this is real, you should probably talk to an ethics attorney and talk with the State Bar, of course hypothetically.
1. The Gun:
A lawyer that knows that he is in possession of evidence of a crime, has no option but to turn the evidence over to the police.
2. The new client knows that the convicted client is innocent. This one is tricky because it invokes two problems. The first of course is whether or not the attorney can represent one client when doing so might adversely affect or even harm another client or former client. Moreover, the new client and the old client would each have to waive the attorney-client privilege, after consultation, in order for you to even utilize this information.
3. The attorney-client privilege is considered sacrosanct and at the heart of the justice system. A client must be certain that any information that he imparts to his attorney will be kept privileged and confidential until waived.
4. Competing with the rule set out in No. 3, is the exception to the attorney-client privilege which is the crime or fraud exception. However, that exception only applies when the client intends to commit a crime or fraud, and advises the lawyer before doing so. The privilege will not attach at that point. The sub-exception to the crime or fraud exception is when the attorney acts in concert with the client to commit a crime or, in the alternative, supress evidence.
Therefore, in the absence of full disclosure and waiver from each client, under the facts you give, the attorney is tongue-tied or gagged so that even if he revealed the information, it would not be admissible in court.
5. Now take rule No. 4 above and Rule No. 1 above. If the client gave the gun to the lawyer and said that the gun was part of a robbery and resulted in a murder, and that the new client intends to destroy that evidence and asks the lawyer to do it for him, the lawyer can disclose only so much of what the client told him, along with turning over the gun, without disclosing which crime it was used in or who turned it over to him.
That is as far as an attorney can go without a court order permitting him to break the attorney client privilege.
Even if a court orders him to disclose more, the attorney still owes an obligation to appeal that order unless or until the client waives the privilege.
If I were a lawyer, knowing all of the above, I would first advise the new client to let me meet with the prosecution informally and see if an immunity deal of some kind, or alternatively a lenient plea deal of some kind, could be worked out in the abstract without disclosing any details including the name of the new client. I would also advise the new client that by keeping silent, if the former client who is facing the death penalty is executed, the new client could be charged with the former client’s murder if he keeps silent or prevents me from disclosing the information to the authorities.
Moreover, that may be grounds under the crime or fraud exception, i.e. new client keeping silent and committing murder by execution, for me to disclose the information.
However, the gun would have to go to the police under all circumstances above.