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.