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« Bloggers, Chill! | Main | Heh. Indeed. »

March 09, 2005

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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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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