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Lawyer question
Old 07-26-2007, 09:39 AM   #1
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Lawyer question

I have what is probably a naive question about lawyers, something I've wondered about after having served on a few juries. A lawyer establishes a special relationship with their client, so what is said between them remains between them. But the lawyer is also an officer of the court and is sworn to uphold the law. Suppose a criminal gets arrested, hires a lawyer, and tells the lawyer, yes I did it but I still want you to defend me.

My question is, does the lawyer say (a) sorry, I have to turn you in; (b) admit to the court the client did it but try to get them off on some technicality; (c) keep the info to themselves and argue the client didn't do it; (d) something else.

Now, since I can't ask a lawyer question without providing a lawyer joke, here's another lawyer question:

-- If you are stranded on a desert island with Adolph Hitler, Atilla the Hun, and a lawyer, and you have a gun with only two bullets, what do you do?

A: Shoot the lawyer twice.
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Old 07-26-2007, 09:48 AM   #2
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Martha will be along shortly to answer....... However,I am aware that there is something called "attorney-client privilege". I'll bet there's PLENTY of defense attorneys that ask their client point blank if they "did it", so they can look at the facts of the case and see if they can WIN it, or they should PLEA BARGIN, irregardless of the admission of guilt of the client to their attorney or not........

Martha??
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Old 07-26-2007, 10:04 AM   #3
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I wonder why I jump to answer these kind of questions. There are plenty of other lawyers that frequent this place. Oh well, maybe it is my way of keeping in the game.

FinanceDude is right, attorney-client privilege bars the lawyer from telling on his client. However, if the client tells the lawyer he is guilty, the lawyer can't put the client on the stand to testify otherwise. If the client insists on testifying you wouldn't be able to represent the client anymore.

I never did criminal law but I can think of one client I had way back that wanted to lie about something (or as he said, pretend he didn't say "x"). I refused and ended up firing the client. The former client did later lie on some documents filed with the court. I couldn't say anything due to attorney-client privilege. I did tell him what I thought though.
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Old 07-26-2007, 10:36 AM   #4
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I thought that a lawyer on finding out that his client is guilty, is supposed to try and compel the client to admit their guilt
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Old 07-26-2007, 11:33 AM   #5
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Quote:
Originally Posted by FinanceDude View Post
I'll bet there's PLENTY of defense attorneys that ask their client point blank if they "did it", so they can look at the facts of the case and see if they can WIN it, or they should PLEA BARGIN, irregardless of the admission of guilt of the client to their attorney or not........
I thought a client's guild guilt was irrelevant to the trial process.
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Old 07-26-2007, 11:35 AM   #6
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Only in LA...
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Old 07-26-2007, 12:12 PM   #7
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Only in LA...
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Old 07-26-2007, 12:23 PM   #8
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My recollections from professional ethics class are hazy, but I seem to recall the professor telling us how to deal with criminal clients (who are usually guilty as hell ). Don't ask them if they did it. Tell them that if they tell you that they did it, you won't be able to represent them anymore. Then ask them questions in such a manner to help you figure out what happened (according to them) and to help you develop a case based on reasonable doubt. That's what you do if you're using the "he didn't do it" defense on behalf of your client. Whether he did it is irrelevant, as long as you don't know or shouldn't reasonably know that he did it.

You would use a different tactic if it's a "he did it, but he was justified in doing it" defense. Figure out the full story of what happened and get details on the defense to be raised (it was self defense, he attacked me first kind of thing).

You, as the attorney have to guide the interview process and be careful as to what you ask.
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Old 07-26-2007, 12:46 PM   #9
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It is kind of long, but the applicable Minnesota Rule of Professional Conduct, and comment, say in part:

RULE 3.3 CANDOR TOWARD THE TRIBUNAL
(a) A lawyer shall not knowingly:
(1) make a false statement of fact to a tribunal;
(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Comment
* * * *
False Evidence
When evidence that a lawyer knows to be false is provided by a person who is not the client, the lawyer must refuse to offer it regardless of the client's wishes.
When false evidence is offered by the client, however, a conflict may arise between the lawyer's duty to keep the client's revelations confidential and the duty of candor to the court. Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false character should immediately be disclosed. If the persuasion is ineffective, the lawyer must take reasonable remedial measures.
Except in the defense of a criminal accused, the rule generally recognized is that, if necessary to rectify the situation, an advocate must disclose the existence of the client's deception to the court or to the other party. Such disclosure can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement.
See Rule 1.2(c). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer's advice to reveal the false evidence and insist that the lawyer keep silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the court.
Perjury by a Criminal Defendant
Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. While it is agreed that the lawyer should seek to persuade the client to refrain from perjurious testimony, there has been dispute concerning the lawyer's duty when that persuasion fails. If the confrontation with the client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because of the confrontation with the client does not take place until the trial itself, or because no other counsel is available.
The most difficult situation, therefore, arises in a criminal case where the accused insists on testifying when the lawyer knows that the testimony is perjurious. The lawyer's effort to rectify the situation can increase the likelihood of the client's being convicted as well as opening the possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court.
Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the lawyer's questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. Another suggested resolution, of relatively recent origin, is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This is a coherent solution but makes the advocate a knowing instrument of perjury.
The other resolution of the dilemma is that the lawyer must reveal the client's perjury if necessary to rectify the situation. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence.
See Rule 1.2(c).
Remedial Measures
If perjured testimony or false evidence has been offered, the advocate's proper course ordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek to withdraw if that will remedy the situation. If withdrawal will not remedy the situation or is impossible, the advocate should make disclosure to the court. It is for the court then to determine what should be done-making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing. If the false testimony was that of the client, the client may controvert the lawyer's version of their communication when the lawyer discloses the situation to the court. If there is an issue whether the client has committed perjury, the lawyer cannot represent the client in resolution of the issue, and a mistrial may be unavoidable. An unscrupulous client might in this way attempt to produce a series of mistrials and thus escape prosecution. However, a second such encounter could be construed as a deliberate abuse of the right to counsel and as such a waiver of the right to further representation.
Constitutional Requirements
The general rule - that an advocate must disclose the existence of perjury with respect to a material fact, even that of a client - applies to defense counsel in criminal cases, as well as in other instances. However, the definition of the lawyer's ethical duty in such a situation may be qualified by constitutional provisions for due process and the right to counsel in criminal cases. The obligation of the advocate under these Rules is subordinate to such constitutional requirements.
Refusing to Offer Proof Believed to Be False
Generally speaking a lawyer has authority to refuse to offer testimony or other proof that the lawyer believes is untrustworthy. Offering such proof may reflect adversely on the lawyer's ability to discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate. In criminal cases, however, a lawyer may be denied this authority by constitutional requirements governing the right to counsel.
* * * *

Nice and muddy, huh.

The model rule of professional conduct has an exception for criminal defendants regarding the obligation to not offer evidence a lawyer reasonably believes is false.
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Old 07-26-2007, 02:58 PM   #10
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You would use a different tactic if it's a "he did it, but he was justified in doing it" defense.
In Texas that's known as "He needed killin'."
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Old 07-26-2007, 04:25 PM   #11
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Nice and muddy, huh.
So, can I summarize what you and Justin posted as "Don't ask, don't tell."
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Old 07-26-2007, 05:52 PM   #12
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Yeah, or "It depends" or "it's complicated".

FYI, some lawyers specialize in legal ethics/misconduct cases. Not surprising that lawyers are litigious...
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