QUESTION: Does attorney-client privilege protect the client
if the attorney testifies against the client?
ANSWER: Only as to confidential communications between the attorney and the client. Acts of the client witnessed by the attorney are fair game. There are some exceptions. If the client said he was going to kill a police officer who testified against him, the privilege doesn’t apply. I actually had this happen, and immediately warned the officer of the client’s threat.
If the client waives the privilege, then the attorney can be compelled to testify to a communication. When I first started with the Public Defender's Office back in 1973, we had a case where the murderer put his victim (his wife) into the trunk of his car and went and showed it to his lawyer, who lived on the other side of the state.
The lawyer advised his client to turn himself in, “But whatever you do, don’t turn yourself in where you live. The juries there will convict you of Murder I in a New York minute.” He turned himself in to the sheriff of a neighboring county, was appointed the public defender, pled guilty to Murder II, and got sentenced to life. At that time people were doing 7 years on a life sentence for Murder II and getting paroled. I didn't handle the case, but I thought the lawyer who did handle it got his client a sweetheart deal. If memory serves me (and sometimes it doesn't), nobody in our office knew anything about the murder occurring in a neighboring county. Sometimes your clients don't tell you everything.
After sitting in prison a while, our hero hired another lawyer, got a new trial ordered because my colleague had “coerced” him into pleading guilty to Murder II. His new counsel then moved to dismiss the indictment because the murder occurred in another county. He called the lawyer the client had confided in to prove the murder was committed in another county. Case dismissed.
But he got re-indicted in the other county. And his new lawyer thought it would be impossible to prove that the crime occurred in that county because the only evidence of that fact was the testimony of attorney number one. Surprise. Attorney number one was compelled to testify that the defendant had told him “I killed her in [censored] County.”
Jury verdict of Murder I. Penalty Phase. Another shock for the new attorney. “That’s double jeopardy!” he complained. No, it isn’t, the judge ruled, former jeopardy was waived when he asked to have the conviction set aside. Luckily for our hero, the jury recommends life. Unluckily for our hero, a life sentence for Murder I carried a 25-year mandatory minimum before becoming eligible for parole.
So who better served his client here? The “incompetent” public defender who “coerced” the defendant into pleading guilty to Murder II; or the private counsel who got paid handsomely to expose his client to the death penalty and finally got him sentenced to life with a mandatory 25 years?
ANSWER: Only as to confidential communications between the attorney and the client. Acts of the client witnessed by the attorney are fair game. There are some exceptions. If the client said he was going to kill a police officer who testified against him, the privilege doesn’t apply. I actually had this happen, and immediately warned the officer of the client’s threat.
If the client waives the privilege, then the attorney can be compelled to testify to a communication. When I first started with the Public Defender's Office back in 1973, we had a case where the murderer put his victim (his wife) into the trunk of his car and went and showed it to his lawyer, who lived on the other side of the state.
The lawyer advised his client to turn himself in, “But whatever you do, don’t turn yourself in where you live. The juries there will convict you of Murder I in a New York minute.” He turned himself in to the sheriff of a neighboring county, was appointed the public defender, pled guilty to Murder II, and got sentenced to life. At that time people were doing 7 years on a life sentence for Murder II and getting paroled. I didn't handle the case, but I thought the lawyer who did handle it got his client a sweetheart deal. If memory serves me (and sometimes it doesn't), nobody in our office knew anything about the murder occurring in a neighboring county. Sometimes your clients don't tell you everything.
After sitting in prison a while, our hero hired another lawyer, got a new trial ordered because my colleague had “coerced” him into pleading guilty to Murder II. His new counsel then moved to dismiss the indictment because the murder occurred in another county. He called the lawyer the client had confided in to prove the murder was committed in another county. Case dismissed.
But he got re-indicted in the other county. And his new lawyer thought it would be impossible to prove that the crime occurred in that county because the only evidence of that fact was the testimony of attorney number one. Surprise. Attorney number one was compelled to testify that the defendant had told him “I killed her in [censored] County.”
Jury verdict of Murder I. Penalty Phase. Another shock for the new attorney. “That’s double jeopardy!” he complained. No, it isn’t, the judge ruled, former jeopardy was waived when he asked to have the conviction set aside. Luckily for our hero, the jury recommends life. Unluckily for our hero, a life sentence for Murder I carried a 25-year mandatory minimum before becoming eligible for parole.
So who better served his client here? The “incompetent” public defender who “coerced” the defendant into pleading guilty to Murder II; or the private counsel who got paid handsomely to expose his client to the death penalty and finally got him sentenced to life with a mandatory 25 years?
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