Attorney-client privilege

Okay. Once again, not to get political… but a certain son of a certain sort-of elected leader (sigh) claimed that the attorney-client privilege applied to certain phone conversations between him and his father. Neither of whom are attorneys. But, said Junior, it totally counts because Dad’s lawyers were listening in on the conversation.

Does Junior’s argument have any legal validity? Of course not. But let’s look at the privilege itself.

To take a step back, it’s important to know that, in general, a person’s conversations with another person may be used as evidence. This is true whatever the mode of those conversations: live in person, voice via telephone, electronic via text or email, etc. But there are a few exceptions to this rule, situations where those conversations are protected and where the opposing side cannot “discover” them (i.e., force the other side to hand them over). These exceptions—or privileges—include conversations between physicians and patients, between clergy and penitents, between accountants and clients, between spouses, and between lawyers and clients. Each of these has special rules; today I’m just addressing the final one.

The primary purpose of the rule is to allow clients to be frank with their lawyers, which in turn allows lawyers to be more effective at defending them. In order for the privilege to apply, at least one of the people must be a lawyer, the other person must be that lawyer’s client (or seeking to become one), and the conversation must be about legal matters. Therefore, although I’m a lawyer, a friend who casually chatted with me about his plans for the next day would not be able to invoke the privilege to protect that conversation. And just because Dad’s lawyers were listening to a conversation doesn’t mean the privilege can be invoked.

Even when the privilege applies, there are exceptions. One interesting exception is that it generally can’t be used if one or more parties uses the information to commit a crime. For instance, if Bruce asks his lawyer, Tina, how best to cover up the fraud he plans to commit, that discussion isn’t privileged.

Another twist has to do with perjury. If, because of conversations with the client, the lawyer is aware of the truth of the situation, but then the client lies about those facts on the stand, the lawyer may have the ethical duty to rat him out to the judge. Thus, a lawyer may get caught between her duties to the defendant and her duties to the court. Plot bunny! (Many lawyers handle this situation by refusing to let a client take the stand if they believe the client will perjure himself.)

Furthermore, a client can waive the privilege and voluntarily choose to share privileged communications. Simply discussing the conversation in public constitutes a waiver.

Another exception to the privilege is especially pertinent to Junior’s situation. The privilege is nullified if anyone aside from the attorney and client was present during the conversation. Such as, say, a Russian lawyer who had neither father nor son as a client.

Of course, if certain sons of certain leaders can be this clueless about how the privilege works (or at least pretend to be), so could your characters. So feel free to make this a plot point, if you wish.




Do you write paranormal or horror? Then today I have a plot bunny for you, courtesy of friends and my daughter. Let me preface this by saying that, like many attorneys, I enjoy considering legal hypotheticals. We can’t help it. Law school ruined us.

So my younger daughter recently sent me this text:

She was at a birthday party. I don’t even want to know how the subject came up. But I posted the text on Facebook, which led a couple of friends to make comments about zombies. And that leads to today’s plot bunny.

Suppose Alex is a zombie. And further suppose Alex  attacks Bob, a living human being, and kills him. And then, maybe after some time has passed and after Bob has begun his own zombification process, Alex eats Bob’s brainnnnns.

Assuming zombies are subject to criminal laws, can Alex be charged with two homicides?

Part of our answer will depend on an interpretation of the law. Homicide is generally defined as the unlawful taking of a human life. So are zombies human? If not, Alex can be charged with only one homicide, plus maybe desecration of a corpse. If zombies are human, another question arises. Does it violate double jeopardy to charge someone with killing a person and then destroying the zombie that person has become?

We could add some other twists as well. What if Alex kills Bob, abandons the corpse, returns before Bob has risen as a zombie, and eats his brainnnnns then? Would that still count?

And what defenses might Alex have? Can a zombie form mens rea?

One of my law profs once gave a lecture about how lawyers are vampires, but I think lawyers and zombies could be fun too. So please. Consider writing a zombie legal procedural novel?

Jailhouse lawyers

In June I toured the Wyoming Frontier Prison, which operated as the state penitentiary from 1901 to 1981. The tour guide mentioned that at one point, the prison housed the most complete law library in the state. I don’t know if this bit of trivia is accurate, but it does raise an interesting topic: jailhouse lawyers.

The problem is this: Inmates have only limited access to legal assistance. Yes, they’re entitled to an attorney for their case but not for all appeals and not for other legal cases such as habeas corpus and civil lawsuits. Of course, they probably don’t have money to hire counsel for those cases. And while they can represent themselves, a large proportion of inmates are functionally illiterate, poorly educated, or have limited English skills, so they can’t realistically research and write about their legal issues.

As a result, jailhouse lawyers exist. These are inmates who are willing to provide legal help to other inmates. Almost none of them have law degrees, so they are largely self-taught. The courts have held that unless prisons provide reasonable alternatives, they must allow assistance from jailhouse lawyers. Furthermore, the prisons must allow adequate law libraries.

I think jailhouse lawyers could make a wonderful addition to a book. Maybe your hardened con redeems himself by struggling against all odds to prove someone else’s innocence or to improve prison conditions. If you’re considering this plot idea, this handbook might help.

Ineffective assistance

Last week I posted about the right of criminal defendants to be represented by counsel. Today I’m discussing a related matter—what if the defense lawyer sucks?

On the one hand, the case law is clear: defendants have the right to effective assistance. While this doesn’t mean the lawyer has to be a Clarence Darrow, it does mean she has to do her job competently. If she doesn’t, a conviction may be overturned.

Ah, but there’s a major caveat here. In order to make a claim of ineffective assistance of counsel, the defendant has to prove more than the lawyer’s incompetence. He also has to prove that, if it weren’t for her bad job, the outcome of the trial would have been different. This is called the Strickland test, named after the case in which the Supreme Court articulated it. In many cases, the test essentially means the defendant has to prove he’s innocent, which can be difficult even with a good lawyer.

Courts have upheld convictions in which the defense attorney was drunk at trial, was mentally ill and delusional, fell asleep during the trial, asked the defendant’s family for money to do DNA testing but kept the money and didn’t do the test.

I think ineffective assistance of counsel is an excellent and underused plot device. Imagine that your hero is innocent but gets a cruddy lawyer. Maybe that lawyer is even paid off by somebody to do a bad job? And now your hero has to prove he didn’t do it. Lovely!

Defense attorneys

Defense attorneys have been around, in one form or another, for centuries. Back in ancient Greece, for example, an accused person might hire an orator to speak at trial on his behalf. Back then, knowledge of the law wasn’t as important as an ability to sway the jury. Historically, though, England allowed defense attorneys only in misdemeanor cases, and then only if the defendants could pay for them. People accused of felonies could pay to consult with an attorney before the trial but had to argue on their own behalf in court. (Although victims could hire a prosecutor—there was no equivalent to the District Attorney—they rarely did so.) By the beginning of the 18th century, however, defense attorneys were having a more active part in criminal cases. And this timing is important, because that’s when much of Britain’s legal system was exported to what became the United States.

By the time the US Constitution was written, the right to counsel in criminal cases was considered important enough to be included in the 6th Amendment. But it wasn’t until the 1960s that the Supreme Court ruled that in all criminal cases—state and federal—in which the defendant might be imprisoned, he is entitled to counsel, and the government must provide an attorney for him is he can’t afford to pay for one himself. Approximately 70-80% of defendants are indigent and unable to afford an attorney on their own.

There are several systems by which defense attorneys can be administered, and the specifics vary with jurisdiction. Broadly speaking, most major metropolitan areas have a public defender’s office, in which the lawyers work full time for the government, providing defense counsel for indigent defendants. But in less populated areas, a system like that may make less sense. In those cases, lawyers in private practice may contract with the government to provide defense services for a set amount of time and money. Or the courts may assign specific attorneys in private practice to defend particular cases. Some jurisdictions use a combination of these systems. For example, they might have a public defender’s office but rely on contract or assigned lawyers if the caseloads get too heavy.

While the right to an attorney may seem pretty basic, it encompasses a lot of details. To which specific proceedings does it apply? When can it be waived? What are the rules with respect to what defense attorneys can and can’t do? What are the standards of quality for defense representation? All interesting questions for later posts. For now, a warning—if you have a defense attorney in your story, make sure you do your research and find out how your jurisdiction administers defense services.

Defense attorney dilemma

Today I have a lawyerly plot bunny for you.

Defense attorneys have various legal and ethical duties, some of which may occasionally collide. On the one hand, a defense attorney has the obligation to represent her client to the best of her ability, using all reasonable legal means to get her client off the hook, regardless of whether she believes the client is guilty. On the other hand, she is an officer of the court, charged with making sure no miscarriage of the law occurs.

Really, these duties are toward the same end, since both involve making sure that the justice system runs the way it’s supposed to. But sometimes they can create problems. For example, what if the defendant lies on the stand? Does the attorney let the judge know that perjury has occurred, or does she keep her mouth shut?

If the attorney knows—or suspects—ahead of time that her client will perjure himself on the stand, she has the duty to keep that from happening. The easiest way is to not call him as a witness. The defendant cannot force his lawyer to let him testify. However, if the defendant does testify and unexpectedly lies, the lawyer’s not supposed to say anything—but she can’t intentionally let him continue lying. It can be a difficult balancing act.

So here’s your plot bunny. Your character is an attorney representing a smooth bad guy. The bad guy lies on the stand—implicating someone else—and is found not guilty. Now the cops are after that third party, and your lawyer wants to make sure an innocent party doesn’t go to prison. What does he do? And what complications might ensue if he’s attracted to that innocent third party?

What lawyers really do

Word association time! When I say lawyer, what image comes to mind? Probably someone in a suit, standing in a courtroom and making passionate arguments. And sure, some lawyers do that. In reality, however, the vast bulk of attorneys’ work in criminal cases—whether the lawyers are defense attorneys or prosecutors—takes place outside the courtroom.

The United Kingdom and some other common law countries have two kinds of lawyers: barristers act as advocates in court, whereas solicitors do most of the out-of-court work. We don’t make this distinction in the US, however, and even the UK has blurred the lines in recent years.

Only about 5% of criminal cases ever get to trial. In the other cases, the charges are dropped, the defendant pleads guilty, or a plea bargain is reached. That means that in 95% of criminal cases, the lawyers will never step foot in court.

But of course that doesn’t mean they aren’t busy. They’re leading investigations into the evidence; interviewing the defendant, victim, and/or witnesses; doing research into the law; filing paperwork such as pretrial motions; and discussing the case with the opposing side. Depending on the complexity of the case, these activities will last months or even years. And if the case does end up in court, while the trial is going on the lawyers will continue to do a lot of work behind the scenes.

I know trials make for exciting drama on the screen and in our pages. It’s a bit more challenging to draw excitement out of a scene in which someone’s drafting a motion or memorandum. (“Heart racing, she paused with her finger hovering over the mouse button. Should she click Search now, or were her Boolean terms too broad?”) But if you’re going for accuracy in your depiction of a lawyer in a criminal case, you should at least acknowledge the amount of effort going on outside the courtroom.