Does Alice have an implied covenant of good faith and fair dealing duty towards appointed counsel, Bob? Alice is charged under a criminal accusation, and counsel is appointed for Alice under the Sixth Amendment. Alice gives written notice to Bob (the appointed counsel) that Alice will always have at least one friend or family with the objective to aid the cause of the defendant and advising the defendant (Advisor) overhearing any remote communications they may have over the phone, but will not interrupt or otherwise even announce their presence just listen, and Bob acknowledges that fact. [EDITED] **Alice will not disclose the name or other identifying information of the Advisor to Bob other than the general relationship of and role of Advisor to Bob, and Alice will please the Fifth if compelled to provide information any further information on Advisor. Alice’s secondary objective is to meet her burden of proof of inadequacy of counsel which she is unable to without the audio recording. Alice might have a similar interest protected by the First Amendment to the recording that is supported in connection with recording the police. Under California case law, announcing to all parties that a call may or will be overheard shall be treated as if it is announced that it may or will be recorded which rebuts an objectively reasonable expectation of privacy or confidential communications and communication thereafter implies consent as well. Does Alice have to expressly announce if she or friends or family would be recording and obtain therein the implied or an express consent due to a covenant of good faith duty — or since they don’t have a contractual relationship, and Bob acts out of a statutory right of Alice imposing in particular a duty on Bob — she does not have to do that? Is Alice, for any of the above reasons and under the above circumstances, privileged to recording Bob without expressly announcing it to Bob and can Alice do so while evading a finding that she obviated her privileges to the confidential advice of Bob as counsel?
Does Alice have to expressly announce if she or friends or family would be recording and obtain therein the implied or an express consent due to a covenant of good faith duty or since they don’t have a contractual relationship, and Bob acts out of a statutory right of Alice imposing in particular a duty on Bob, she has no such duty? Alice and her counsel have some reciprocal duties. The duty of good faith and fair dealing, while in principle applicable to any contractual relationship, is not a good framework in which to analyze those duties. It is more fruitful to consider this specialized situation as a relationship arising at law which is not predominantly contractual in character. It is an attorney-client relationship primarily, not a contractual one, particularly in the case of appointed counsel who is not voluntarily selected or paid by the client. There are rules of professional conduct that specifically govern the allocation of responsibilities between an attorney and a client, some of which are particular to criminal defense clients and their attorneys. These rules of professional conduct would be controlling, not the duty of good faith and fair dealing. Further, it bears noting that the proposed arrangement would result in a forfeiture of the attorney-client privilege which is not a condition that any reasonable attorney engaged in a criminal defense case would agree to allow, for the client's own good. The main rules of professional conduct that are applicable (all U.S. jurisdictions use the same numbering system for their rules of professional conduct although not all of them are identical in content) are Rule 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), Rule 1.4 (Communications), and Rule 1.6 (Confidentiality of Information). Of these Rule 1.2 is most important. It states: [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. It also prohibits a lawyer from allowing his or her services to be used in furtherance of an ongoing crime or fraud. Rule 1.4 provides that: (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rule 3.1 (Meritorious Claims &amp; Contentions), Rule 3.3 (Candor Towards The Tribunal) and Rule 3.4 (Fairness to Opposing Party &amp; Counsel) would also often be pertinent (as this defines what communications an attorney can and cannot have with others ethically, primarily prohibiting an attorney from knowingly using false testimony or faked evidence). There is some variation from state to state in the exact details of these rules, but the general thrust and the general scheme of organization is the same. In a nutshell, the clients has a responsibility to determine ends, and the lawyer is charged with deciding means, although in practice, it can get more complicated than that when the ends and the means are intertwined. The main exceptions in criminal cases to this division of labor are the means involved in electing a jury trial and choosing to have the client testify as a witness. A lawyer could reasonably insist, as a condition of ongoing representation by the lawyer of the client, that communications between lawyer and client not have someone else listening in.
The issue is more one of what an attorney is ethically authorized to disclose pursuant to professional ethics rules (Rule of Professional Conduct 1.6 as enacted locally) more than one of attorney-client privilege. Attorney-client privilege governs what someone can or cannot be compelled to disclose without their consent (usually by subpoena). Attorney confidentiality, in contrast, governs what an attorney can disclosed when not compelled to do so by something like a subpoena. Generally, disclosure of confidential client information is allowed if it is in furtherance of the representation or authorized by the client (there are also other exceptions but those aren't really any different in a two lawyer v. one lawyer situation). Often when two attorneys represent the same person (and the disclosure won't waive the privileged nature of the information vis-a-vis third-parties under a joint defense theory), disclosures from one attorney for a person to another attorney for a person will do that. In practice, however, the analysis could be quite fact specific and there isn't really a bright line rule governing when it would or would not be allowed.
Is an attorney permitted to ask questions like those in either paragraphs two and three? Yes. That does not mean that they will be considered relevant or even appropriate, though. Is the witness allowed to decline to answer such questions for reason of irrelevance, or other grounds? Yes. In general, though, it would be safer for the witness to state an objection (be it on the basis of irrelevance, confrontational, asked &amp; answered, as to form, etc.) and answer the question nonetheless, rather than simply refusing to answer it. By simply declining to answer a question regardless of the basis for refusal, the witness risks affording a crooked lawyer the opportunity to falsely generalize that the witness was uncooperative. One exception to the idea of "object-and-then-answer" is where some privilege is the alleged basis for the objection, since the substance of the answer could be such that it amounts to waiving the privilege even where that privilege is legitimate. The witness may also opt to answer the lawyer's irrelevant questions even without stating an objection. Some questions are so obviously irrelevant, dull, or stupid that a failure to raise an objection will be inconsequential. In such scenarios, raising objections can only lengthen the deposition transcript and make it harder to read. For a real-life example of deposition with plenty of dull questions, take a look at the transcript (which I split in parts one, two and three) of the 4-hour deposition where I myself was the witness (you can download the case file, almost in its entirety, from this page). You will notice that I did not raise objections during the deposition, the main reason being what I explained above: To avoid giving the opposing counsel an opportunity to falsely accuse me in court of being uncooperative during deposition. Furthermore, addressing the crook's futile questions (1) projects transparency and helps on the witness's part, and (2) precludes a false &amp; misleading impression as if the witness had something to hide. After all, wrongdoers are the ones most interested in eluding testimony in ways very similar to this other deposition. The reason of being of objections is precisely that the law "is aware" that, as a matter of fact, lawyers indulge in all kinds of abusive questions when taking sworn testimony --be it in trial or at deposition-- of a witness.
Can the communications between Barbara and Amy be subpoenaed, or are they protected by Attorney-Client privilege? The communications remain protected by the attorney-client privilege. People Ex Rel. Herrera v. Stender, 212 Cal.App.4th 614 (2012) describes a pattern of unauthorized practice of law by a former lawyer who allegedly kept giving legal advice without informing his clients about his disbarment. The opinion nowhere suggests that their attorney-client privilege was invalidated or waived. Quite the contrary. For instance, the court reiterates the intent to &quot;protect individuals in need of legal advice from seeking assistance from Martin R. Guajardo in the mistaken belief that he is a licensed attorney&quot;, Id. at 628. That intent is palpable also in the mention of &quot;ad hoc measures from the court's equitable arsenal&quot; to preserve the clients' privilege, Id. at 647, 650 (quotation marks omitted, brackets added). See also In Re Grand Jury Proceedings, 219F.3d 175, 183 (2000): [W]hen waiver occurs as a result of inadvertent [...] disclosure, courts have limited the scope of that waiver based on the circumstances involved and overall fairness. (citations omitted). Your premise that Amy concealed her disbarment and made intentional misrepresentations about being authorized to practice law implies that Barbara's disclosures to Amy were inadvertent. U.S. v. Warburg Pincus LLC, U.S. Dist. Court, Vermont (June 2022) reflects that &quot;the attorney-client privilege can remain intact despite a one-time leak of privileged information&quot; (citing cases). A multiplicity of communications between Amy and Barbara seems unlike to defeat Barbara's privilege as long as the premise of Barbara's [reasonable] unawareness holds.
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.
In California, all parties to a conversation (people being recorded) have to agree to a recording. There are no special rules pertaining to husbands and wives. It is sufficient that the parties are aware that the recording is being made and they continue to talk, knowing that fact. There are exceptions, under Cal. Penal 633.5, in that surreptitious recordings are allowed in order to gather evidence of "extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m". To be used as evidence, there are also "predicate rules" to the effect that you have to prove who the voices are from, that the recording hasn't been altered, and that the recording is reliable (e.g., there isn't a mysterious 18 minute gap).
The general rule is that in the opening statement, the lawyer may describe what he expects the evidence and testimony to show: We will present Mr Smith, who will tell you that he saw the defendant miles away at the time of the crime But cannot make statements of fact as such. I don't see why this rule would be different for a pro se defendant. In a closing argument, as i understand the rule, the lawyer may and often will say things like "As witness X testified, there was no time to stop" but is not supposed to introduce new alleged facts not supported by the evidence. However, in a closing, a lawyer can and often does draw conclusions from facts supported by testimony. "My client was proved to have been in the next town 20 minutes earleri, so obviously he could not have committed the crime." Again, i don't see any reason why these rules would be different for someone acting pro se.
It may not be libel, but it may violate other statutes and may support a judgement against the person publishing this information as long as there is an injury-in-fact ("an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical"). A recent case, Spokeo, Inc. v. Robins 578 U.S. ___ (2016) considered the case where a company created a profile for a person. That profile stated "that he is married, has children, is in his 50’s, has a job, is relatively affluent, and holds a graduate degree". The plaintiff asserted that all of this was incorrect. The plaintiff made a claim under the Fair Credit Reporting Act because the information was false. However, mere violation of statute is not sufficient to meet the "injury-in-fact" requirement for standing. Congress can't create standing via statute. Injury-in-fact still requires a "concrete" injury. This does not need to be a physical, tangible injury. But, it does need to be concrete. On its own, publication of false information, even when statute prohibits it, does not create standing. There must be an injury-in-fact.