The Role of the Lawyer Legal Ethics Bar associations and codes of ethics 1 American Bar Association ABA History of bias Reactionary stands on free speech loyalty oaths 2 Regulation of the legal profession ABA Model Code of Professional Responsibility State bar associations self regulated industry Few disbarred Ethical issues 1 Fees 2 Multiple representation 3 Attorney client privilege confidentiality Attorney Client Privilege 1 Definition the right and duty to withhold information because of some special status or relationship of confidentiality 2 Confidentiality one element of the privilege What is covered by the privilege It must be a communication It must be a particular sort of communication 3 Purpose of the attorney client privilege Exceptions 1 Consent if client consents to disclosure 2 Court order if required to be revealed 3 Future acts Old rule if clients intends to commit a crime New rule if client intends to commit serious or substantial bodily harm 4 Self defense if client sues the lawyer for malpractice Change in policy Modification in 2002 a lawyer may reveal confidential information to the extent the lawyer believes necessary to prevent reasonably certain death or substantial bodily harm The Belge case New York The Lake Pleasant Bodies case 1 Facts Robert Garrow charged with child molestation and subsequently murder Assigned attorneys Frank Armani and Francis Belge 2 Garrow informed them of location of two more dead bodies 3 Lawyers did not tell authorities Question Whether the location and existence of the bodies fell w in the attorney client privilege Belge legal proceedings 1 Indictment for violating NY public health laws notification right of burial 2 Constitutional rights 5th Am Rt against self incrimination 6th Am Right to counsel 3 Balance individual rights against harm to family and society Question Whether Belge acted properly Comparisons 1 Scott Peterson California Business and Profession Code It is the duty of an attorney to maintain inviolate the confidence at every peril to himself to preserve the secrets of his client 2 Bernardo case Canada Lawyer Kenneth Murray withheld evidence Prosecuted for obstruction of justice Question How to deal with incriminating evidence Nix v Whiteside U S Supreme Court 1986 1 Issue Whether the Sixth Amendment right of a criminal defendant to assistance of counsel is violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial 2 Facts Whiteside kills Love in an altercation During preparation for trial Whiteside asserts If I don t say I saw a gun I m dead 3 Legal arguments Self defense only requires a reasonable belief the victim had a gun Haphazard police search of victim s apartment Love known to own a gun Appeal 1 After jury verdict of 2nd degree murder and 40 year sentence Whiteside appealed Supreme Court of Iowa affirmed The right to counsel does not include rt to present perjured testimony 2 Federal court petition for the writ of habeas corpus You have the body 3 Key question whether the lawyer s admonition to Whiteside that he would inform the Court of Whiteside s perjury constitute a threat to violate the attorney s duty to preserve client confidences U S Supreme Court 1 The Court relied on Strickland v Washington which requires showing serious attorney error and prejudice harmless error rule 2 The Court concluded that there is a specific exception from the attorney client privilege for the disclosure of perjury The Court said this is required by legal ethics 3 Conclusion A defendant s right to effective counsel was not violated when his attorney used threats to dissuade him from committing perjury U S v Dunnigan 1993 Defendant has no right to lie 9 0 1 Issue whether a defendant can deny charges and if subsequently convicted be given a longer sentence 2 Facts Sharon Dunnigan denied being part of a cocaine ring but was convicted later 3 The U S Supreme Court upheld sentencing guidelines that allow enhancements for the obstruction of justice Justice Kennedy concluded it was reasonable to permit a stiffer penalty for the willful presentation of false testimony 4 Implications for due process Right to testify on one s own behalf presumption of innocence The Freedman trilemma The difficult questions are what a lawyer must should or may do after his client has given testimony he or she does not believe Professor Monroe Freedman trilemma The lawyer is required to know everything The lawyer is required to keep it in confidence The lawyer is required to reveal it to the court Other contexts Responses to Enron Corporation and other catastrophies exception for material fraud Compare SEC policy requiring disclosure to ABA policy saying lawyers may disclose wrongdoing Limited impact states have rules permitting disclosure in case of economic crime or fraud Disadvantage discourages executives from disclosing problems to lawyers Toyota product safety 1 Former Attorney for Toyota Motor Corporation revealed evidence he obtained while in house counsel showing product safety problems 2 Toyota alleged this violated a confidentiality agreement and the attorney client privilege Toyota won a 2 6 million arbitration judgment against him in January 2010 3 Biller had countersued accusing Toyota of a ruthless conspiracy and relentless effort to prevent evidence of its vehicles structural shortcomings from becoming known LA Times 1 6 10 pp B 1 4 Swidler Berlin v U S 1998 Effect of Death on atty client privilege 1 Investigation of White House Travel office employees during Clinton Administration Deputy White House Counsel Vincent W Foster Jr sought legal representation and then committed suicide 9 days later 2 Federal grand jury sought the notes from that meeting 3 Question whether the atty client privilege survives death 4 District court said yes Court of appeals no and U S Supreme Court yes Chief Justice Rehnquist We hold that the notes are protected by the attorney client privilege Dissent by O Connor joined by Scalia and Thomas 5 Implications how would ruling otherwise influence those anticipating their own deaths with regard to consulting attorneys Questions 1 Who should decide what defense to offer the lawyer or the client 2 Does the attorney s duty to the court to violate the client s right to effective assistance of counsel Why why not 3 How much proof would the lawyer need to know with certainty that his client is lying or planning to lie 4 Is there a violation of the 6th Amendment if