Does &quot;furtherance of a crime&quot; exception to attorney–client privilege apply if the attorney is unsure? If a lawyer suspects that a client shall commit an imminent crime, then attorney-client privilege ceases and communication is not privileged. But what if the lawyer is unsure whether the crime is about be committed? For example, consider this hypothetical: A client informs their lawyer after killing someone through torture (for example, by burying them alive), and also of the location of the killing. If the victim has already died, then the crime is murder; so presumably this communication is privileged. However, if the lawyer doesn't know definitely that the person has died (attempted murder), then furtherance of that crime may be prevented. Does the lawyer have a duty to report the information to the police? Are there any legal implications if the lawyer is wrong?
(US Answer) Under the Model Rules of Professional Conduct, "A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary... to prevent reasonably certain death or substantial bodily harm..." Most states have incorporated the MRPC into their own state legal ethics codes. Therefore, as to whether a lawyer may tell the police, it comes down to whether death is reasonably certain, and whether the lawyer reasonably believes disclosure is necessary to prevent the death. In the case of a person buried alive, death is reasonably certain, and whether the disclosure is reasonable will be based on what the lawyer knows and doesn't know - was it a month ago? ten minutes ago? etc. If the lawyer believes it is too late, he is obligated to stay quiet. If he believes there is a chance of saving the life, and that belief is later judged reasonable if he is investigated, there will be no penalty for him if he discloses. There is no duty for a lawyer to report a crime committed by a non-lawyer/non-judge, so non-disclosure should have no negative ramifications legally. Disclosure found to be unreasonable could be punished by private censure, public censure, suspension of license, or even disbarment, depending on the view of the bar association's ethics investigators.
There have been cases in the UK where paying someone's legal bills was interpreted as joining their case. So when A with no money libels someone, and B with deep pockets pays A's lawyer, then B risks being held liable for damages if A gets convicted. So B should be very careful. Just giving you money is probably the safest. But attorney-client privilege is between attorney and client. I have been laid off twice with my company asking me to take an employment lawyer and paying for it. (Interestingly each time the bill was exactly the maximum amount the company was willing to pay :-) It would have been absurd if my company could demand information that is under attorney-client privilege just because they paid the bill. Why did two companies pay the lawyers bill? Because that way they ensure that the separation is without problems. The lawyer explained the settlement contract and what it meant exactly. They also checked that the contract didn’t contain anything unacceptable which the company would have fixed. So if I had tried to sue them later I would have no chance to win (but there was no reason to sue). Another reason not to sue was that the company offered I settlement that was very significantly more than was legally required, but if you sued them you would only get what you got in court - most likely less than you would get without suing. So basically they paid to make sure I would have no reason to sue them later.
Can an attorney plead the 5th if attorney-client privilege is pierced? Yes. But if the prosecutor offers the attorney &quot;use immunity&quot; for the testimony (i.e. a binding promise that the attorney's own testimony won't be used against that attorney), then the 5th Amendment privilege can be overcome as well. In other words, the prosecutor can unilaterally force an attorney to waive his or her fifth amendment rights by granting the attorney immunity from having that testimony used against the attorney, even if the attorney doesn't want to do that. This is established, for example, as noted in the comments by bdb484, by the case of Kastigar v. United States, 406 U.S. 441, (1972) (“The United States can compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring immunity”).
This is not a "if you breach the contract we may sue you" clause. This is a clause which says "if we find you trying to breach the contract, we can ask a court to stop you from doing so (even though you may not have actually breached the contract at that point in time)". The provision entitles the aggrieved party to specific relief - in this case, by the way of an injunction. Specific relief means relief of certain determined nature or of a specific kind, rather than a general relief or damages or compensation. Essentially, the clause that provides that if the receiving party of the confidential information threatens to disclose such information, the disclosing party shall be entitled to ask the court to specifically order the receiving party not to disclose the confidential information (as opposed to post-facto asking for damages for the harm caused by reason of such disclosure). In the absence of this provision, a court may rule that the disclosing party has no locus to take pre-emptive legal action, as no damage has been caused yet by the other party.
The parties are generally entitled to present their case as they see fit, as long as they stay within the rules of evidence. If they want a straight yes or no, the court will often require the witness to provide one, which keeps lawyers happy, makes the answers clear for the jury, and limits the parties' grounds for appeal. If a yes or no answer is not as accurate as a more qualified answer, the other lawyer would typically have an opportunity to invite the witness to provide a fuller answer on redirect. If a yes or no answer is inappropriate because of assumption embedded in the question -- as in your &quot;beating his wife and kids&quot; example -- the question should quickly elicit an objection from the defense attorney, who would note that the question lacks foundation or assumes facts not in evidence. Assuming there isn't any evidence of domestic violence, the court should sustain the objection, in which case the witness would not need to answer at all.
This is not possible, simply as a matter of definitions and legal terminology. Someone who is "represented by one or more attorneys" is by definition not pro se which means representing yourself without an attorney. There are very rare instances in criminal trials involving serious consequences in which a pro se defendant is allowed to have an attorney advisor who does not represent them in court in an agency capacity, but, first, people who do that almost always lose and are almost always mentally ill (although not necessarily eligible for an insanity defense), and second, because courts generally don't allow this in any other circumstance (at least in court). The concept of getting advice from an attorney without having full fledged representation is called a "limited representation" and the law regarding limited representations more generally varies greatly from jurisdiction to jurisdiction and even between different courts in the same place. For example, Colorado's state courts and Colorado's federal courts have different rules for limited representations.
A lawyer is obligated to protect his client's interests and to carry out his client's directions in these matters. Not doing so would violate multiple ethical rules applicable to lawyers. Some of the relevant provisions of the American Bar Association's Model Rules of Professional Conduct which are the template for every state's ethical rules (some with local variation) are: Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Rule 1.7 Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. Rule 1.13 Organization as Client (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law. (c) Except as provided in paragraph (d), if (1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. (d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law. (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal. (f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing. (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders. Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. Rule 2.1 Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. A lawyer is certainly within his rights, and indeed his duty, to inform a client that his proposed course of action is unwise, and can withdraw from representing the client. But, in general, in a transactional matter, unless the proposed conduct constitutes a crime or fraud, the lawyer may not defy a client's directions. Of course, while there are general rules in the law, there are also almost always fact specific exceptions to those rules. For example, while ordinarily, writing a tough contract when dealing with a minority counterparty would not be a crime or fraud. But, if an easy contract was used with all non-minority counterparties, but not with minority counterparties and the client's instruction was intended to discriminate on the basis of race, it might very well be unlawful or even a crime, in some circumstances to do so, which would alter the lawyer's obligations. Even then, however, a lawyer would almost never be authorized to affirmatively draft a contract contrary to the client's instructions as opposed with declining to do that work at all.
"Hearsay" is a term used for statements offered in evidence in court that are not admissible because the person who originally made the statement has not testified to it. The hearsay rule is complex, and has many ramifications and exceptions. Legal texts take hundreds of pages to explain all these complications. But the term is not appropriate unless the statement is offered as evidence in court, or there is a plan to offer it. An ordinary email that no one plans to offer in court is neither hearsay nor not-hearsay, it is just a set of statements that may be true or untrue, accurate or mistaken. If for some reason this email were to be placed in evidence in court, the default procedure would be to call the person who originally wrote it to testify, and ask questions like "Did you write this? When did you write it? was it the truth to the best of your knowledge when you sent it?" If the original sender cannot or will not be a witness, then whether the email will be accepted as evidence will depend on what is sought to be proved by the email, and what evidence there is that the email was sent, and by whom, and was the truth as far as the sender knew. If what you really want to know is whether the email accurately quotes the organization's lawyer, just email or write that lawyer, saying something like "Does the attached email accurately represent an opinion that you gave to {organization} as I have been told it does?"