A lawyer for Matthew Hale, the white supremacist convicted last year of plotting to kill a federal judge whose husband and mother were slain last week, said on Tuesday that Mr. Hale's mother called him a few months ago and asked him to pass on an encoded message to one of Mr. Hale's supporters.
"She said she didn't know what the message meant, but she was going to read it to me verbatim because Matt made her write it down when she visited him," the lawyer, Glenn Greenwald, said in an interview. "It was two or three sentences that were very cryptic and impossible to understand in terms of what they were intended to convey." ...
[Hale's mother], in an interview Monday, said that her message to Mr. Greenwald was about someone her son thought should testify at his April 6 sentencing, and that any coding was only to keep the federal monitors of their conversations from figuring out his legal strategy.
That's pretty much it for the substance of the story. No one has any idea what the "coded" message was. The geniuses at the FBI are pitted against the genius of the founder of the World Church of the Creator.
But what's remarkable to me is that the story exists at all. This message was a communication regarding the representation from a client to his lawyer. And the lawyer not only provided it not only to the FBI, but also to the press.
When I was but a wee lawyer, they told me a story about "attorney-client privilege" and "the duty of loyalty." These things, virtues lost in the mists of time apparently, were supposed to be essential elements of how a lawyer gave her client effective representation. There is no indication in the story that Hale authorized this disclosure. So how is it that the lawyer decided to disclose this communication?
Without knowing more, I wonder what effect the recent conviction of Lynne Stewart had on the lawyer's actions. Stewart was convicted of passing messages from her client to his associates on the outside. If you're a lawyer weighing an ethics violation versus a federal criminal charge, which would you choose?
It's not really relevant to this particular case, but I'm curious: do lawyers have the same exemption from privilege if their client has imminent plans to injure someone (or himself) as psychologists do? In that case psychologists/therapists are not only exempted from confidentiality but are in fact legally obligated to report the client's intentions to the authorities.
Posted by: Ruth | March 09, 2005 at 09:42 AM
do lawyers have the same exemption from privilege if their client has imminent plans to injure someone (or himself) as psychologists do?
Yup, generally. Ethics rules are set by state bar associations, so there may be variability between states that I am not familiar with. But the commentary to the ABA's model rules say:
Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town's water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer's disclosure is necessary to eliminate the threat or reduce the number of victims.
So, disclosure is permitted, but not mandatory, unlike a reportable condition in medicine. The only thing the commentary says is mandatory is "the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent." That's why lawyers often treat client questions as hypotheticals: it preserves your ability to advise without "knowing" your client intends to engage in criminal or fraudulent behavior. Not very pretty, but that's the rule, and you're okay so long as you stick to the letter of the rule.
Please note that Hale's lawyer's disclosure doesn't fall under either the bodily harm or crime/fraud exceptions because the lawyer claims not to know what the message meant.
Posted by: Mithras | March 09, 2005 at 10:00 AM
Thanks for the law lesson counselor! Yeah, I knew this wouldn't pertain to the Hale case, I just wanted some more semi-useless (for me since I'm not a lawyer) information to crowd my brain.
Posted by: Ruth | March 09, 2005 at 01:03 PM
Well, Stewart was under a court order not to pass messages along, so it was different, right?
And honestly, it's been years since I took the MPRE (or had a real "client"), so I don't know - how would privilege apply when there are instructions to tell someone else something?
Posted by: iocaste | March 09, 2005 at 05:17 PM
Stewart had entered into an agreement with DoJ not to pass messages along. I didn't mean to say the situation was parallel, only that if you were an attorney representing a high-profile terrorist defendant, it might weigh on your mind whether you could be accused of conspiracy.
how would privilege apply when there are instructions to tell someone else something?
Good question! I'm too lazy to research it, but that might blow the privilege argument unless Hale can argue that the information in the message was important to his defense. I can't see how the lawyer can argue otherwise since he doesn't know what the message contains. In any event, duty of loyalty still obtains - he didn't even try to assert the privilege. Bad form.
Posted by: Mithras | March 09, 2005 at 06:05 PM
A guy who has no ties to white supremacists claimed responsibility for the murders and committed suicide. He was pissed about a med mal decision the judge made.
Posted by: Hubris | March 10, 2005 at 08:44 AM
Going along with the "too lazy to research, but willing to offer an opinion anyway" - I'd say the guy breached his duty. The Stewart case probably didn't have an affect, since I only think he'd be in trouble if he asserted privilege, they went to court and got an order, and he still wouldn't cooperate.
Posted by: Gib | March 10, 2005 at 05:17 PM
The Stewart case probably didn't have an affect, since I only think he'd be in trouble if he asserted privilege, they went to court and got an order, and he still wouldn't cooperate.
Makes the unauthorized disclosure even more strange. I guess you're right on the merits, though. I was thinking that if Greenwald had already forwarded it to Hale's associates, maybe the DA argued he was an accessory after the fact. But that doesn't make sense, because he'd have to show Greenwald had the intention to help the murderer.
Given that Hale probably can't afford to fire Greenwald, who works for free, we'll probably never find out.
Posted by: Mithras | March 10, 2005 at 10:13 PM
Hale has a law degree and a very high opinion of himself. Properly prompted, he could very well fire his lawyer and represent himself. I have no doubt he considers himself capable of it.
That'd probably work about as well as pretty much every other time I've ever heard of a defendant trying to handle a serious matter pro se, which is to say it would be a disaster of galactic proportions.
Posted by: Gib | March 11, 2005 at 03:01 PM
But Hale likes having Jew lawyers represent him. Because everyone knows Jews are great lawyers. Plus, I suspect he gets a little thrill by pretending he is giving them "orders."
I just realized Hale's mother might have told the cops the message before they questioned Greenwald about it. That would definitely blow the privilege.
I take it you weren't near any of the goings-on in Atlanta today. Good to hear it.
Posted by: Mithras | March 11, 2005 at 06:00 PM