S08T-Ex1-2b

 

A lawyer's confidentiality is important because it encourages a client to tell the lawyer all the facts of his case without concern that the lawyer will tell the police or prosecutor in a criminal case or the opposing counsel in a civil case facts that would harm the client's interest. With the full facts, the lawyer can give a client the best and most comprehensive advice. Without the full facts the lawyer may have an unwelcome surprise in court. A lawyer in most circumstances is required with only limited exceptions to keep confidential information received from clients and prospective clients. MR 1.6 and 3.3.

The confidentiality rules make no exception for lawyers who fail to inform their clients about the rules. Without the client's informed consent the lawyer may not disclose information except in the limited exception included in rules 1.6(b), 3.3(a)(3), and 3.3(b). Because the lawyer always has the confidentiality rules to consider he is well served to inform the client of the rules and especially the exceptions at the first meeting. Failure to disclose those exceptions to the client followed by the lawyer actually using those exceptions to reveal information is a near certain way for the lawyer to lose the client's trust.

In the first meeting the A-1 and A-2 lawyers took two different approaches to informing the client of the confidentiality rules. The A-2 lawyer started the meeting with a confidentiality discussion and the A-1 lawyer waited until near the end. Because each approach has strengths and weaknesses, a hybrid of the two may be best. The A-2 lawyer began with a formalistic explanation of confidentiality and exceptions, which might lead the client to ask whether the attorney trusts her or expects her to be dishonest. The A-1 lawyer instead waited until the end of the meeting to explain confidentiality, which may allow a client to disclose information an attorney has either discretion to report or must take some action to correct. This second situation taking corrective action may be worse because the client could end up very surprised when the lawyer says that he is informing another party what the client told him. This is in fact what happened in my subgroup. The A-1 lawyer in the second interview did not remind the client of the confidentiality rules before the client admitted to him that her alibi that she intended to tell to the housing authority was a lie. A1 4:55 - 5:10. When the attorney then told her that he had to inform the housing board of her perjury the conversation became very difficult. The client was relying on the broad statement from the first interview that "whatever you tell me does not leave this office." First interview A1 7:29. The lawyer in the first interview did not discuss the 3.3 exceptions, so the client was rightfully surprised when the attorney said he would tell the housing board if she lied. Second interview A1 5:30 - 6:00. It would have been better for the A-1 lawyer in the first interview to cut back on the questions irrelevant to the case, with a few as a conversation starter, then conduct a complete confidentiality discussion. This discussion should have clearly separated the MR 1.6 requirements for confidentiality of past acts, discretion to disclose ongoing acts or acts that reasonably threaten life or great harm, and the MR 3.3 requirement of candor to the court and that includes the attorney obligation to take reasonable measures to correct false evidence.

The A-1 lawyer could have had a minute or so of unsubstantial discussion to start the conversation and put the client at ease, rather than the long questioning about irrelevant information followed by the confidentiality discussion. However, neither of the first interview confidentiality discussions were adequate. The A-1 lawyer told the client that nothing he said would leave this room, then gave a few of the MR 1.6 exceptions when she would disclose information, such as to prevent death or if the client planned to commit a felony. A1 7:29 - 8:20. The A-1 client, as we saw in the second interview, was rightfully confused about the scope of confidentiality and exceptions.

The A-2 lawyer gave a long discussion of confidentiality in the first interview but she too confused the client. The A-2 lawyer combined the lawyer's discretion to report some exceptions listed in MR 1.6 with the lawyer's duty to correct false testimony in MR 3.3. Lawyer A-2 said that she could not reveal information without client permission, except in limited circumstances, and would be obligated to report if the client lied or planned to lie while testifying. The obligation that the lawyer has regarding false testimony is to take remedial measures following the false testimony. The lawyer must take action he thinks is reasonable, which could include informing the court of the lie. RR 3.3(a)(3). But the rule is clear that whatever remedial action the lawyer takes, it is not mandatory that it be disclosure to the court. There may be other options depending on the circumstances. Telling the client that the lawyer is obligated to inform the court of false testimony that has not yet occurred is not only incorrect, but is likely to scare the client from revealing other potentially important information for fear of disclosure.

Learning the client's story is critical for representing her well. While a lawyer may not want to grill a client in the same way that he would a hostile witness, Civil Procedure Rule 11 makes clear that the lawyer should know the details of the client's story before getting to court or he might risk getting some sanctions. A lawyer that does not treat his client with some skepticism does a disservice to his client because opposing counsel will treat the client with nothing but skepticism. Better for the lawyer to know how the client will respond in the office rather than in court. Here, the lawyers did not treat their clients with skepticism and in some cases discouraged discussion of the relevant facts.

Past offenses at the apartments are relevant to the housing board's eviction determination. The A-1 lawyer asked a lot of questions that could have found out more about Gordon's past. In the first interview the lawyer asked whether Gordon had any other problems (A1 3:20), and in response heard that Gordon "didn't have a record" (A1 3:46), "haven't been to court" (A1 4:12), and had no "criminal past" (A1 4:20). These were all broad and open responses that should have have had more specificity to find out what really happened.

These examples also showed the lawyer was allowing the client to assess the legal relevance of the facts the client withheld. It is the lawyer's job to make that assessment of the facts the client discloses. The lawyer ought to encourage the facts to come forward. Here that was not the case, as the lawyer either did not follow up on the incomplete answers to find the legal significance. Specific examples include allowing the client to assess the severity of run-ins with the housing authority (A1 5:45 - 6:20) and the "is there anything else important" question at 7:15. While a broad question such as that one might be useful, it is only useful with some examples of what kinds of things might be important. In this interview the client never heard the lawyer acknowledge anything the client said was important, so the client could not know what kinds of information might be important.

When the A-1 client in the second interview told the lawyer that she planed to lie about the alibi, the lawyer's already dilemma was greatly worsened because he had not explained the MR 3.3 confidentiality exceptions and had not learned the client's story. These problems turned the interview from a discussion about what the lawyer could do to help his client and his duty to represent his client into a discussion of the lawyer's requirement to inform the court of false evidence. The lawyer no longer represented the client, he represented himself.

The A-1 client was not adequately advised of the confidentiality exceptions in either interview, especially those exceptions relating to committing perjury at the housing hearing. At the first meeting the lawyer's confidentiality discussion never mentioned the MR 3.3 exceptions. A1 7:28 - 8:25. At the second meeting the lawyer did not describe anything about confidentiality until it was too late to help the client decide what to tell the lawyer. When the client surprised him with her confession that the alibi was a lie the lawyer retreated to a position defending his role with the housing officers. A1 4:55-5:10.

After the client confessed the alibi was a lie, the lawyer turned the interview into a discussion of the lawyer's responsibility to the legal system. The lawyer's response that he would have to tell if she lied did nothing to gain the client's trust or confidence in the lawyer. A1 5:30-6:00. The lawyer again told the client that he was "required to tell the tribunal if you lie" in response to the client saying she would stick with the football story. A1 8:25 - 8:35. And he reminded her again that he had to tell the housing hearing if she is lying. A1 8:55-9:05. Because she never knew about the MR 3.3 exceptions until it was too late, the client likely lost confidence in the lawyer and might not have told her story even if the lawyer had asked.

The client felt like she had only two options, lie about the alibi and hope they are not evicted from the apartment or tell the truth fully expecting that they would be evicted. She tried several times to ask the attorney for more advice. She asked him what she could do to help. A1 3:45. She told the lawyer she wished she had another option. A1 10:30. She pleaded that she had no other options. A1 11:00. The attorney had these many opportunities to dig deeper into the client's history and find out more about Gordon's past, which the attorney had not done at the first meeting, and maybe learn facts to help develop a strategy for the housing board hearing that the client would agree to. Unfortunately the A-1 lawyer was fixated on what he thought was best for the client rather than on what she wanted.

The lawyer's idea that he knew what was best for the client without getting the client's story started early when he stated that the client's objective was to stay in the apartment with Gordon. A1 1:00 - 1:13. He never told the client that might not happen nor did he ask her to discuss other options. Without explaining why, he told her that she should plead no contest. She strongly rejected that option because she was very concerned about developing a record that could get them evicted from public housing. A1 3:17 - 3:24. But again the attorney told her that she should plead no contest and hopefully get probation. A1 6:05 - 6:30. The client again responded that she was worried about what would happen to Gordon. A1 6:30- 6:55. Then twice more the attorney advised her to get a probationary period (A1 7:00 -7:10 and 9:45 - 10:05). Having been met with so much resistance earlier in the interview the attorney now left implicit that the client should plead no contest. Rather than learn more about the client, explain the client's options and chance for success, and find out what the client would accept, the lawyer continued to passively persuade the client to accept his predetermined plan.

The A-1 lawyer also had a problem distinguishing between the client's case with the housing board and her son Gordon's criminal case with the police. The accusation of mugging is the reason they might be evicted from the apartment. But the attorney twice gives advice on the criminal matter, telling her that the charge might be brought back up if he gets into trouble in the next six months, A1 4:30 - 4:40, and that if Gordon gets in trouble again it does not matter whether they have the apartment because he will be going to the detention center. A1 9:45 - 10:05. It might well worry the client that the lawyer will tell the housing board that she is lying, which could lead to their eviction. It might also let her believe that when there is a criminal trial the lawyer will be there too testifying against Gordon.

The A-1 lawyer asked a good question when he told the client it was her choice how to proceed and then asked what she wanted to do. A1 7:30 - 7:40. Unfortunately the client was not armed with the information that she needed to make a decision. If the lawyer had gotten her story, he would have known what other troubles Gordon had been in at the apartments, what disputes the witness had had with Gordon in the past, and whether Gordon had a real alibi for the evening of the mugging. The lawyer could also have explained the weaknesses of the housing board's case: the victim Mrs. Montez could not identify the attacker; Mrs. Karp, the elderly woman who identified Gordon, had a history with Gordon; the police relied on the Karp's self-described good eyesight; the attack occurred in the dark; and Gordon was identified because he was wearing a leather jacket and jeans, as do many other teenagers. Simon and Gordon did not watch the football game, and while they could learn some details about the game from the newspaper article they would not know everything about what was televised. If the hearing officers were Jets fans who had watched the game, any questions they asked about the game to confirm the alibi would doom Simon and Gordon's credibility when they got facts wrong. Because Simon has a keen interest in staying in the apartment her testimony might be suspect from the beginning. The lawyer should have explained how the preponderance of the evidence standard works and that Simon and Gordon needed only to be slightly more credible than Montez and Karp. It seems like a fairly even credibility balance between the two sides now, but anything that might undermine Simon and Gordon's credibility at all could swing the balance against them. That doubt on her credibility could easily find her out on the street.

These arguments might not be enough to convince Simon to testify truthfully. As in the Garrow case, where Garrow did not want to disclose to the police the location of the missing girls' bodies, and in the class hypotheticals trying to convince Garrow to tell the location of the Petz girl in the tent, a client may be immune to a lawyer's best persuasive technique to agree to the lawyer's suggestion. We cannot assume that Simon will to stick with the alibi no matter what. The lawyer must provide the legally relevant facts and an analysis to the client so the client can make an informed decision. That is the whole point of using the lawyer confidentiality rules to get the information from the client.

The A-1 lawyer would have better served his client after the alibi disclosure if he remembered that his duty was to the client. While it is true that a lying witness may eventually lead the lawyer to disclose the perjury to the court, that should be the last step not the first. Given the opportunity to use the law and the facts to explain to the witness why perjury is bad and harms the client's case, the lawyer should seize on that lucky escape route. Even if he is not successful he at least did his best to serve the client. And in Georgia the lawyer then has complied with Georgia Rule 1.6(b)(3) and made a good faith effort to persuade the client not to lie.