united-states criminal-law lawyer attorney-client-privilege attorney-client-relationship
Is an attorney allowed to turn on their client?
<p>Inspired by Yakuza Judgement.</p>
<p>Say that Andy the Attorney is potentially representing Dave the defendant. But while they talk, Andy finds Dave to be a repulsive human being who's obviously guilty of the crime. As a good human being, Andy quits being Dave's attorney, and instead airs out all the dirty laundry to the prosecution, to get Dave locked behind bars for good.</p>
<p>Are there any consequences for this? Can Andy be charged with anything? Can Dave declare a mistrial? Etc.</p>
<p>Edit: I didn't want to give explicit examples, but what if Dave was openly admitting to having committed the crime, and was boasting about committing more crimes as soon as Andy gets him off the hook. At some point, isn't Andy allowed to, as a good Samaritan, turn on Dave? What if Dave was openly boasting about acts of terrorism he was about to commit, etc.. Is Andy forced to be a tool/bystander to Dave's villainy? Is Andy ever allowed to take action against Dave without consequence? Similar to how even therapists are allowed to speak up if their client is dangerous.</p>

<p>Andy would be almost immediately disbarred and might also be held in contempt of court.</p>
<p>Andy would be disbarred for reasons including his violations of the duty of confidentiality owed by Andy to his client Dave under Rule of Professional Conduct 1.6 in a context like this one. This would be considered an open and shut blatant violation of one of the highest and most serious ethical obligations that an attorney has, and is neck and neck with the rule against stealing money from your clients as a ground for near automatic disbarment. The clarity and severity of the breach of professional ethics by Andy in this regard (and other aspects such as his fiduciary duties to his clients and duty of zealous and diligent advocacy for his client) leaves no ambiguity regarding the appropriate level of discipline.</p>
<p>Andy might be held in contempt of court for reasons including knowingly disrupting a court proceeding in which he was or is an attorney of record. He can't quit representing Dave until the court grants his permission to do so.</p>
<p>Dave's trial would probably not go forward or his conviction would be set aside. In all likelihood, a trial with a new prosecutor not exposed to the information would be arranged to avoid the taint of the breach of privilege.</p>
<p>This would be because providing the prosecutor with inadmissible evidence taints the ability of the prosecutor to proceed untainted by inadmissible evidence and would constitute ineffective assistance of counsel which is one of the grounds for setting aside a conviction for a violation of the 6th Amendment to the US Constitution, which grants the right to effective counsel.</p>
<blockquote>
<p>what if Dave was openly admitting to having committed the crime,</p>
</blockquote>
<p>This is utterly irrelevant. Criminal defense lawyers aren't only or mostly for innocent people, and their main job isn't really to get people acquitted of crimes they committed. Instead, a criminal defense lawyer's job is to hold the prosecution to their duties to prove their case, to force the criminal justice system to comply with civil liberties protections, to prevent convictions of excessive charges for the conduct committed, and finally to secure appropriate sentences for their clients (which usually means negotiating a plea bargain). Criminal defense lawyers prevent defendants from being convicted and sentenced in circumstances where they wouldn't have been convicted or sentenced if they weren't ignorant of the legal system (which most criminal defendants are).</p>
<blockquote>
<p>what if Dave was . . . was boasting about committing more crimes as
soon as Andy gets him off the hook.</p>
</blockquote>
<p>A vague statement like this does not trigger any right of Dave to take any action differently. It's basically bravado or a statement about his own character in general.</p>
<blockquote>
<p>What if Dave was openly boasting about acts of terrorism he was about
to commit, etc.</p>
</blockquote>
<p>If he was about to commit an act of terrorism but was thwarted, Andy needs to keep his mouth shut.</p>
<p>If Andy knows that Dave is about to imminently commit a specific terrorist act then this very distinct fact pattern raised different issues and belongs in a separate question. The crime-fraud exception to the duty of confidentiality, and the way that an ethical lawyer can take appropriate action in a way that minimizes harm to the client, all involve considerations very different from those in the main question.</p>
<blockquote>
<p>Is Andy forced to be a tool/bystander to Dave's
villainy? Is Andy ever allowed to take action against Dave without
consequence?</p>
</blockquote>
<p>The duty of a lawyer not to use his services to further a crime is also a very distinct fact pattern. But, failing to report imminent unilateral acts by a client in furtherance of a crime or fraud is very different from not using information about a client's past actions or vague future intentions against the client, and is also different from using a lawyer as a tool to commit a crime or fraud.</p>
<p>These are three distinct situations. A different analysis applies to each one.</p>

<p>That evidence would not generally be admissible due to solicitor-client privilege that is up to the defendant to waive.</p>
<p>The attorney would be subject to disciplinary action by their oversight body (e.g. bar association).</p>
<p>I also question the premise that acting &quot;as a good human being&quot; implies violating one's duties to the client and the legal system.</p>
<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="canada-container">canada</a></p>
<p>There is a <em>very</em> narrow exception for public safety (<em>Smith v. Jones</em>, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1689/index.do" rel="noreferrer">[1999] 1 S.C.R. 455</a>): when there is an clear and imminent risk of serious bodily harm or death to an identifiable person or group.</p>

<h2>Andy can't &quot;quit&quot;</h2>
<p>Andy is Dave's lawyer and this is a position that one cannot just &quot;quit&quot;.</p>
<p>In general, defence lawyers would prefer to have upstanding human beings who are innocent of the crime but, bye-and-large, those people don't get charged with a crime. It is an established fact that most crimes are committed by criminals. Defending guilty people is most of what defence lawyers do.</p>
<p>If Andy is not yet Dave's lawyer then, if Andy is in private practice, he doesn't have to take the job. If Andy is a public defendant or a court-appointed representative then Andy doesn't even have that choice.</p>
<p>Either way, once Andy is Dave's lawyer then, beyond a certain point in the trial,  he is Dave's lawyer for the duration of the case barring extraordinary circumstances (like Andy dying or becoming gravely ill). If Andy wants to &quot;Quit&quot; or Dave wants to &quot;fire&quot; Andy, they must get the permission of the court and it will only be given for a very good reason. Dave being &quot;a repulsive human being who's obviously guilty of the crime&quot; is not such a reason - Dave is entitled to representation and Andy is it.</p>
<h2>Andy can't throw the trial</h2>
<p>Andy must represent Dave to the best of Andy's ability, personal feelings notwithstanding. Failing to do so can lead to Andy being disciplined and ultimately no longer being a lawyer.</p>
<p>At the same time, Andy can't deceive the court or allow the court to be deceived. This will restrict the strategies that Andy can use in Dave's defence but that's just how it is.</p>
<p>Please note that there is a huge difference between, say, killing someone and murdering them. It is not enough for the prosecution to prove that Dave killed the victim - that may even be uncontested; they have to prove that the killing was unlawful and intentional as well.</p>
<h2>Andy can't reveal what he knows</h2>
<p>Everything that Andy learns while he is Dave's lawyer is subject to attorney-client privilege. That is, it's a secret that only Dave is allowed to break - if Andy does so then he's on the road to no longer being a lawyer.</p>
<p>In any event, anything that is subject to privilege can't be used in court unless Dave agrees to it being used.</p>

<p>Depending on a number of factors, Andy may not actually be allowed even to quit as Dave's attorney, especially if proceedings have already started. Under the 6th Amendment, Dave, having been accused of a crime, &quot;enjoy[s] the right[...] to have the Assistance of Counsel for his defence [sic].&quot;</p>
<p>If Andy is Dave's private attorney, he may submit to the court a motion to end his representation of Dave, and this may be granted if Dave has another lawyer to represent him or agrees to represent himself. Depending on jurisdiction, the same option may or may not be available to a court-appointed attorney, but in either case, if Dave has no other legal counsel, the judge will likely deny the motion and require Andy to continue his representation.</p>

<p>It is the duty of a defense attorney to defend even horrible clients.  Furthermore, it's very likely that the talk you discuss is privileged, leading to the conviction being voided and Andy disbarred.</p>
<p>The <em>only</em> case where Andy would have any hope is if &quot;boasting about committing more crimes as soon as Andy gets him off the hook&quot; could reasonably be construed as falling under the &quot;crime-fraud exception.&quot;  This would depend on the details of the boasting, however, as it's not just generally expecting freedom as soon as he's off, but, per <em>U.S. v. Zolin</em></p>
<blockquote>
<p>The attorney-client privilege must necessarily protect the confidences of wrongdoers, but the reason for that protection–the centrality of open client and attorney communication to the proper functioning of our adversary system of justice–ceases to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing. It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the “seal of secrecy” between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime.</p>
</blockquote>
<p>Merely getting him off the hook would not be such a communication.</p>

<p>As a practical matter, Andy's only &quot;out&quot; is to get excused from the case, by the judge. And &quot;I hate and disbelieve my client&quot; is not an acceptable reason.  Andy would need to come up with a pretty good reason.</p>
<p>Fortunately it would turn sharply on whether Andy did the leg-work to line up a replacement attorney Joan to represent Dave, and Joan has a good reputation and stands up and says &quot;Yeah, I'm ready to go&quot; - at that point the judge would likely agree even if the reason was thin.</p>
<p>That would especially be true if Joan was a better lawyer than Andy :)</p>
<p>Dave blabbing about credible future acts to the attorney, would oblige the attorney to report, or evaluate whether reporting is required. However, that would never happen. At the first whiff of such a disclosure, Andy would flat-out tell Dave, <em>clearly and in the boldest possible terms</em>, about that &quot;duty to report&quot;.  In essence &quot;I can't hear about that, and if I do hear about that, this will happen&quot;.</p>
