Does attorney-client privilege protect a client who lies about his attorney? In many legal conflicts the fact that a defendant acted on the advice of competent legal counsel is considered an affirmative defense, or at least a mitigating factor. Can such a defendant hide behind attorney-client privilege to lie about advice his attorney provided? I.e., does an attorney have an obligation to object to such a lie if made aware of it (even though that would amount to accusing his client of perjury)? Or, can an attorney be put under oath and compelled to testify against his client in such an event? Clarification: This is not pertaining to a situation in which the Client is antagonizing the Attorney. Suppose, rather, that the Client at some point asked of the Attorney, "Give me your professional advice on X." The Attorney responds with, "My advice is Y." The Client instead does Z, gets into legal trouble, and in his defense claims, "My Attorney advised in scenario X to do Z."
It's no fantastic legal source, and rules may vary in different countries, but from the Wikipedia article on Attorney client privilege: Lawyers may also breach the duty where they are defending themselves against disciplinary or legal proceedings. A client who initiates proceedings against a lawyer effectively waives rights to confidentiality. This is justified on grounds of procedural fairness—a lawyer unable to reveal information relating to the retainer would be unable to defend themselves against such action. In other words, if the client's lie is related to one of the lawyer's interests (for example, if the client sues the attorney for malpractice based on the advice he was given), the lawyer can break privilege on his own behalf, thus testifying that his client lied. As to the specific case you brought up, I would say that privilege wouldn't protect the client from the lawyer discussing things never brought up. In other words, we could force the attorney to testify, since one of two things is true: The attorney really did give him that advice, in which case the client has already voluntarily given up his right to confidentiality by describing what was said between them, or The lawyer never gave him that advice, and privilege wouldn't protect a conversation between the two that never transpired.
The best course would be to contact the public defenders office and explain the situation to their intake or consultation services. Remember, you don't have to be going to trial to avail yourself of their services and sometimes, helping cops makes the cops suspicious about you (it would not be the first killer who cozies up to the police to learn what they know about his crime). If the Public Defender thinks you're rich enough not to need their services, you should call criminal defense attorney practices. Most law offices will offer consultation free of charge as part of client intake, so they will be willing to hear your case and offer advice. In either case, check with the lawyer that attorney client privilege is in effect. If they say yes, explain in detail to them, everything you know and want to discuss, even if some of it could criminally implicate you in this or another crime. Treat it as your deathbed confession and you know full well which circle of hell you're going to if the priest doesn't absolve you of sins (okay, too Catholic... but the Lawyer is not going to turn you in if the privilege is in effect... he could lose his license to practice law over it... we can make all the evil lawyer jokes we want, but this is one of the few sacred tenants of their profession.). Listen to his advise. Also see if you can find a second opinion. It's not that the first guy gave bad advice, but the next guy might give you something different. If you still do not feel comfortable, then keep your mouth shut. If they arrest you for the murder, do not talk until you have an attorney present and prepare to tell him exactly what you did. Especially if you did do it. Always answer your attorney truthfully.
A standard common law fraud analysis applies to the person to whom the representation was made. Is it a misrepresentation of a material fact, made with the intent that it be relied upon, which is justifiably relied upon, and the reliance causes damages? Usually, the answer will be &quot;no.&quot; Being represented is not a material fact to a disputed issue. In the case of criminal mail and wire fraud in the U.S actual reliance and damages are generally not necessary. But materiality is still required. Arguably there is a Lanham Act violation for deceptively using the tradename or trademark of a firm in a manner that is misleading. The trouble here is &quot;use the information for what?&quot; This said, it is a bad idea as a tactic to use. For example, I was a lawyer in a fraud case where a defendant we were suing for fraud did something very similar to this (not as an email cc, but representing that they had a lawyer when they didn't). The misrepresentation that they were represented by counsel (for reasons similar to those described) wasn't itself actionable. But being forced to go on the stand and testify under oath that you lied about someone being your lawyer in the middle of a fraud case where you are also accused of lying about other things powerfully destroys your credibility in general with a jury.
What are the ethical rules that limit interaction between civil and criminal proceedings on the same facts? A private lawyer's job is to look out for the client's interests before the public interest in these cases. In many states, a private lawyer is not permitted to threaten to seek a criminal prosecution to gain an advantage in a civil action. A private lawyer, myself included, will often deliberately not pursue criminal charges in order to not impair the ability of a client to collect a judgment. A prosecutor has wide discretion to prosecute or not when the prosecutor is aware of a crime that there is probable cause to believe was committed. A complaint by the victim is not required in the U.S., but most prosecutors consider a victim's wishes. A prosecutor may ethically make prosecution dependent upon making a victim whole. So is this conflict and result just an "unfair" fact of all common-law justice? What is "fair" is beyond the scope of Law.SE which deals in "what is", not in what is "fair". Or are there mechanisms that exist to satisfy the demands of justice despite this conflict? Not really. Just the good judgment of the individual actors in the system given their respective duties and roles.
You would think so, but no While at first glance, President Trump sending a staff member to testify under oath in his place (to nullify any personal risk of perjury?) appears to epitomize the concept of &quot;hearsay&quot;-- a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement --there are some subtle but important distinctions and exceptions in play. I'm going to list them off in increasing order of relevance. FOIA penalties are civil, not criminal The official DOJ website lists off the penalties for Freedom of Information Act violations: The court may award reasonable attorney fees and other litigation costs against the government when the complainant substantially prevails. See 5 U.S.C. Sec. 552(a)(4)(E). Action Against Individual Employees: Sanctions may be taken against individual agency employees who are found to have acted arbitrarily or capriciously in improperly withholding records. Additionally, the court must award attorney fees and other litigation costs against the government. When the statutory requirements are found by the Court to have been met, the Merit Systems Protection Board (MSPB) must promptly initiate a proceeding to determine whether disciplinary action is warranted against the office or employee who is primarily responsible for the withholding. The MSPB, after investigating and considering the evidence, submits its findings and recommendations to the agency concerned which then is required to take the corrective action recommended by the Board. See 5 U.S.C. Sec. 552(a)(4)(F). Additionally, there now exists independent jurisdiction for such MSPB investigations under 5 U.S.C. Sec. 1206(e)(1) (1982). Failure to comply with a court order to produce the records in question may also result in punishment for contempt for the responsible employee. See 5 U.S.C. Sec. 552(a)(4)(G). So the strongest penalty against any individual government official who violated FOIA would be losing their job, or civil contempt of court. In principle the prohibition against hearsay applies equally to civil cases as criminal ones; in practice, because the stakes are lower, courts may take a somewhat looser attitude towards hearsay in civil cases than they would in a similar criminal case. Rule 807(a), &quot;Residual Exceptions&quot; Rule 807(a) gives courts large latitude to determine whether or not to admit hearsay evidence: (a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804: (1) the statement is supported by sufficient guarantees of trustworthiness–after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and (2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. In this situation, the presiding judge, Reggie Walton of the D.C. District Court, clarified what he would consider &quot;sufficient guarantees of trustworthiness&quot;: U.S. District Court Judge Reggie Walton issued the rare order to the White House last week after expressing dissatisfaction with a previous explanation submitted by the Justice Department’s top career official, Associate Deputy Attorney General Bradley Weinsheimer. Weinsheimer said he had checked with an unidentified official in the White House counsel’s office and determined that no new declassification was triggered by Trump’s latest tweets. However, Walton said given Trump’s suggestions of a rogue element undercutting his orders, some assurance directly from the president or someone who had spoken to the president was necessary. As Meadows had, one presumes, literally spoken to the president, this satisfied the presiding judge's own explicit standard of &quot;sufficient guarantees of trustworthiness&quot; for when hearsay may be admitted into evidence. Rule 807(a)(2) is also relevant here, in its caveat that hearsay may be accepted into evidence when it is &quot;more probative...than any other evidence that the proponent can obtain through reasonable efforts&quot;. Arguably, forcing the POTUS to neglect his duties running the country and &quot;ending the pandemic&quot; long enough to testify in what is, in many ways, a run-of-the-mill FOIA case, would take too much effort to be &quot;reasonable&quot;. Which brings me to the next point: Rule 804(a)(1) and Rule 804(b)(5), &quot;Unavailability of the Declarant&quot; Rule 804(a)(1) discusses a specific exception to the hearsay rule when the declarant can't or won't personally testify: (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies As POTUS, it makes sense that Trump would have some degree of privilege or immunity from being deposed. If a sitting President could be dragged into court at will over any government litigation, no matter how mundane, to personally testify, it would be impossible to perform the functions of their office. Think about all of the live issues winding their way through the courts right now that Trump has tweeted about. Now, imagine the demands on his time if he was dragged into court to testify regarding every single one: &quot;Sorry Angela Merkel, I have to cancel our international summit this year, I'm giving a live deposition in 50 different court cases in the next three weeks and I don't have time to do 'foreign policy' right now. Hope no new World Wars break out! Good luck!&quot; Of necessity, a POTUS has to be permitted to delegate 99.9% of legal representation on matters of public policy to other Executive Branch officials, when it comes to who actually needs to be physically present in court. And since he is privileged from personally testifying, that means exception 804(b)(5) applies: (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: .... (5) [Other Exceptions .] [Transferred to Rule 807.] We discussed how Rule 807 applies in this circumstance up above. But I want to circle back to the idea that the President has to be able to delegate statements of official policy to other authorized government representatives, such as Meadows, because of the clinching exception: Rule 803(8)(A)(i): Public records of governmental policy aren't excluded by the hearsay rule Rule 803(8)(A)(i) tells us that: statements of public policy (such as, whether the government is going to declassify, or has already declassified, every document relating to the Russia investigation, specifically including Mueller report and FBI interview redactions) made by public offices or their official representatives (such as the POTUS's chief of staff, authorized to speak on behalf of the POTUS, clarifying the Executive Branch's stance on declassification) are not excluded by the hearsay rule: The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: .... (8) Public Records. A record or statement of a public office if: (A) it sets out: (i) the office’s activities This makes sense given the purpose of the rule against hearsay. It's supposed to prevent innuendo and rumor from sneaking into the factual record when the facts are in dispute: &quot;I heard the defendant's mom say the defendant said he did it,&quot; related by the defendant's mom's bingo buddy, would deservedly raise some eyebrows around the bingo table, but isn't the kind of solid evidence an impartial trial requires. Statements of public policy and government action by public officials, on the other hand, have a lot more authority and credibility than what a friend of a friend of the defendant heard the friend say the defendant said. Meadows isn't (just) some random golf buddy of the President who overheard what the President was thinking when he made these tweets; he's the President's official delegate to the court, conveying the Executive Branch's official position on declassification. Such official statements are ordinarily presumed maximally trustworthy and reliable, at least partly for logistical reasons. Similar to how we can't ask Trump to cancel all the COVID task force meetings to clear his schedule and testify about some tweets, we can't drag every government officer who makes an out-of-court official public statement or record into court to certify it--at least, not every single time. The judicial branch of the government takes the word of other branches of the government mostly at face value†, and does not consider public records or statements in an official capacity as &quot;hearsay&quot; to be excluded from evidence. So the TL;DR version is: No, Meadows coming into court to convey this statement on behalf of his boss would not be excluded by the hearsay rule. †Significantly, statements or records regarding policy might be excluded as hearsay, per 803(8)(B), if the opposition demonstrates that the statement or record is somehow fishy or unreliable: &quot;(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.&quot; But in this instance, in order to demonstrate a &quot;lack of trustworthiness&quot;, the plaintiffs in the case--BuzzFeed, CNN, and the Electronic Privacy Information Center--would have to show that the government was actually declassifying and unredacting all material related to the Russia investigation, contrary to what Meadows claimed in court. Since the government is not actually doing this, the President's social media rants notwithstanding, the plaintiffs would be unlikely to prevail if they tried to use 803(8)(B) to get Meadows' testimony excluded as hearsay.
The term "lawyer up" usually refers to a person asserting their right to silence and counsel, which means that police interrogation must stop. A lawyer would "lawyer up" in that sense if he was being interrogated by the law. Michael Cohen, on the other hand, retained an attorney because of the threat of legal interrogation. As a general rule, absolutely everyone who is the subject of a legal investigation should seek legal counsel, to protect their rights. Although lawyers are broadly trained in many aspects of the law, they aren't experts in all such aspects, so it would probably not be wise for a tax attorney to defend himself in a criminal trial, and a family law expert might not be the best guy to hire to advise you on a complex real estate matter. Since the particular case is highly political, added insulation in the form of an attorney between you and the investigators is to be expected.
Defendants cannot switcheroo whenever they want. There are good reasons why this is almost never done. The lawyer in any of these scenarios is violating an ethical duty of candor to the tribunal, if it is done without court permission (which is unlikely to be granted), even if the client suggested or insisted upon the idea. The lawyer would be responsible for his or her client's actions by cooperating in it, rather than calling out his client in open court over the objections of the client to prevent the switcheroo from working, as the lawyer would have an ethical obligation to do. I would not really consider this to be a gray area. The relevant ethical rules and the related official commentaries to them are quite clear, even if they are not absolutely perfectly clear. Those rules create an affirmative duty of an attorney to prevent his or her client from misleading members of a tribunal (either a judge or a jury or both). Cooperating with this scheme could (and likely would) result in professional licensure related sanctions ranging from a private censure to disbarment for the lawyer, just as it did in the linked 1994 case. Also, while a "not guilty" verdict was entered in the 1994 case, the prosecution would have a good chance of success if they demanded that the judge declare a mistrial, and also a good chance of avoiding double jeopardy limitations in this situation, because the mistrial arose from the actions of the defendant trying to bring about the situation. On the other hand, if this trick worked so well that the prosecutors came to the conclusion that their primary witness linking the defendant to the crime was wrong and that the defendant was not actually the person who committed the crime, the prosecutors would have an ethical duty to not attempt to prosecute the individual whom the prosecutors now believed to be factually innocent (the analysis is actually a bit more complex than that, but that is the gist of it). The defendant and the attorney could (and likely would) also each be held in direct, punitive contempt of court by the judge for this conduct, allowing them to be summarily punished by imprisonment or a fine to an extent similar to a misdemeanor violation, on the spot, without a trial other than an opportunity to explain themselves to the judge in a sentence or two each, since it would be conduct in violation of the good order of the court and disrespectful of its rules and decorum conducted in the actual courtroom in the presence of the judge. Each could easily end up spending several months in jail on the spot for that stunt and perhaps a $1,000 fine each, if the judge was sufficiently displeased. There would be a right to appeal this contempt of court sanction, but the contempt of court punishment would almost surely be upheld on appeal in these circumstances. In a case where the criminal defendant faces extremely severe sanctions if found guilty, such as the death penalty or life in prison, and the defense attorney was a self-sacrificing idealist or close family member of the criminal defendant, one could imagine the defense attorney and client deciding that the professional and contempt citation sanctions were worth being punished with, in order to save the life of the criminal defendant, if they also were convinced that this trick would work so well that the prosecutors would be persuaded of the criminal defendant's innocence sufficiently to not insist on retrying the criminal defendant in a new trial. This would be somewhat analogous to an intentional foul in basketball, but with much higher stakes. But, this would be an extraordinarily rare situation in court, because the punishment for this "intentional foul" in the courtroom are much more severe, and because the likelihood of it producing a beneficial result is much smaller. It isn't hard to understand why a successful switcheroo feels morally justified. It prevents a witness whose testimony would have been much less reliable than it actually would have been from being used to convict a criminal defendant who might conceivably be factually innocent. And it might be very hard to discredit the testimony of that witness in any other way in order to prevent a wrongful conviction of the criminal defendant. Eye witness misidentifications are one of the leading causes of wrongful convictions, and are especially common in death penalty cases because jurors are "death qualified" making them more pro-prosecution than a typical jury. Preventing innocent people from being convicted of crimes is one of several important values of the criminal justice system, and this is the instinct that probably motivated the dissents in the professional misconduct process in the 1994 case. But, the court system also strongly values candor on the part of attorneys, and likewise values not having the court systems be used to trip up witnesses who may sincerely think that they are telling the truth even if they are mistaken about the accuracy of their testimony, in a deceptive manner. In this situation, the latter candor consideration usually prevails, because the rules prohibiting this kind of conduct and scheme, which admits no "moral justification" or "necessity exception", are quite clear. In the same vein, a prosecuting attorney can be sanctioned (and has been on at least one occasion in Colorado) for not being truthful in communications to third parties, even when the lies are used to peacefully defuse a potentially deadly hostage situation. For attorneys, the duty of candor and truthfulness really knows no exceptions. Cops, in contrast, however, are allowed to lie in many circumstances to secure confessions or stop criminals.
Ethical rules for lawyers are enforced by a separate committee or board or department (states vary) to which complaints can be made by lawyers and members of the public. If a complaint appears to have merit, the board has someone prosecute the case in a quasi-criminal manner, which the board hears like a court, subject to an appeal at some point. The consequences range from an order to attend an ethics course, to publicly or privately scolding the lawyer, to suspending the lawyer's license, to disbarring a lawyer, depending upon the severity of the offense. The board interprets the rule in course of the deciding the case. This doesn't provide any relief to the aggrieved party. It merely protects the general public from bad lawyers. There are many interpretive principles and precedents for interpreting what violates Rule of Professional Conduct 4.1. if a client makes false written statements about key dates (say a week long period) in matters of fact and the lawyer knows they are false, what are their ethical responsibilities? If statements are made to the Court, Rule 3.3 (candor to the tribunal) applies, not Rule 4.1. Another example, in matters of divorce and custody, is a lawyer expected to make truthful statements in court regarding the nature of custodial interference? It would be unusual for an attorney to make a statement of fact to a court on any issue. Usually that is reserved for witnesses.