Privilege Breakdown


After Gideon’s two posts (here and here), Scott Greenfield’s two posts (here and here), and my two posts (here and here), here’s how I see attitudes about the revelation of communications from the lawyer to the client shaking out:

Some (edit: but not Gideon) believe that it is okay for a lawyer to reveal such communications to pretermit a possible future claim of ineffectiveness — to “make a record” against the client.

Some believe that it is not okay to make a record against the client, but that it is okay for a lawyer to reveal such privileged communications if revelation would not hurt the client — for example, if the communication was one that the lawyer was ethically required to make. New York criminal-defense lawyer Scott Greenfield holds this opinion. He will preserve confidentiality, but not at the cost of antagonizing the judge unnecessarily. (edit: Scott Greeenfield, whom I believe to adhere to the highest ethical standards, makes it clear that he does not consider his communication of a plea offer to a client to be a privileged communication.) (The argument that lawyer communications are not privileged because they are ethically required has no legs.)

Some believe that it not okay to reveal what the lawyer said to the client, even if it was something the lawyer was required to say, unless revelation would help the client. I am definitely of that opinion. It’s a bright-line test with a presumption against revelation. I may be wrong, but if I’m going to be wrong I want to err on the side of maintaining privilege, rather than waiving it.

I understand Scott’s point about antagonizing the judge. A more sophistical lawyer than Scott, however, might rationalize just about any revelation as furthering the goals of representation by not antagonizing the judge unnecessarily.

Often an antagonized judge is the inevitable byproduct of our doing our jobs properly. If a client told me, “don’t antagonize the judge,” then I could increase what I reveal based on the client’s waiver. But this issue — preservation of the confidentiality of what we say to our clients — is one of those cases in which I think it is worth butting heads with the judge.

Most judges, like most lawyers, have a very fuzzy understanding of the ethical rules that govern the defense of criminal cases. They expect us to make records against our clients because that’s what we (the criminal defense bar generally) have historically done.

If we all took Scott’s position — that revelation is acceptable unless harmful to the client — then they would expect us to reveal all of the things that we believed, at the time, would not harm our clients.

And if we all took my position — that revelation is acceptable only if helpful to the client — then it would neither surprise nor antagonize them that we revealed only that which would help our clients and otherwise stood mute. They might even stop inquiring into privileged matters.

I wonder which attitude the clients would prefer.

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0 responses to “Privilege Breakdown”

  1. Two points:

    1) No one is saying that it should be done to protect yourself from future IAC claims. That’s a misinterpretation that I have tried to clear up, but I guess no one is paying attention.

    2) The client wants and likes a lot of things. I’m sure he’d also like a lawyer that doesn’t flout ethical rules and is not held in contempt.

    If the judge asks me a question that doesn’t require me to reveal more than the practice book requires me to reveal, then I must answer the question. After all, there is such a thing as candor to the tribunal.

  2. Gideon,

    1) I think that’s what one commentator on the blog was saying: “I can‚Äôt say I blame him for making a record during the canvass that his client‚Äôs rejection of the plea agreement was against the advice of counsel.” Even if not, I’ve seen it happen dozens of times, so I know that there are a number of lawyers who thinks it’s okay.

    2) Maybe. A lot of clients have never had anybody stand up for them, though, and they might appreciate it if someone took their defense seriously enough to be held in contempt for it.

    If an ethical rule requires you to reveal something you’ve told your client, then you’re in good shape. If there’s a Connecticut ethical rule on point, that will pretty well resolve the matter. So what is this “practice book” and what does it require you to reveal?

    For the Texas rule, see here. For the cases in which a Texas lawyer must disclose confidential information see here (candor toward the tribunal — a lawyer must disclose facts “when disclosure is necessary to avoid assisting a criminal or fraudulent act”) and here (avoiding becoming a party to a criminal or fraudulent act). Neither applies to the judge’s inquiry about what you’ve told your client.

  3. Mark, see here

    Rule 1.6: Confidentiality of Information

    “Except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed to make a disclosure that facilitates a satifactory conclusion to a matter.”

  4. Huh?

    Oh. Yeah that was a typo.

    “If the judge asks me a question that doesn’t require me to reveal more than the practice book allows me to reveal, then I must answer the question. After all, there is such a thing as candor to the tribunal.”

  5. Gideon,

    In Connecticut, is there a rule that requires you to answer the judge’s questions if permissible, or is that your own decision?

  6. “I wonder which attitude the clients would prefer.”

    The one that doesn’t end up with the judge looking for a way to smack hi, losing every close call and standing there while the lawyer get’s his butt reamed over nothing.

    How many clients would be happy to go to jail so that the lawyer can apply his extreme personal view of ethics? While clients, who don’t understand any of the nuance of this issue, may think it sounds nice for the lawyer to promise a fight about everything, I don’t know of any who are prepared to do time so the lawyer can push the envelope on his privately held view.

  7. Scott,

    Points well taken. Of course, my philosophy has the advantages that (a) I don’t have to bow up to a judge if it’s going to lose me some advantage that I would otherwise have; and (b) in any case, the client gets to decide how much of his privileged information is revealed, and to what end.

    That I told a client about a plea is no less privileged than the advice I gave him regarding that plea. This appears to be where we diverge.

  8. Sometimes the Judge just asks the prosecutor on the record what is the plea bargain being offered today and then the Judge asks the defendant and/or the defense lawyer do you want to accept it or reject it (while looking at both of them for an answer)? Sometimes the prosecutor will state that the offer is no longer on the table after today and the Judge will ask the defendant and/or defense counsel if they understand that?

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