Disclaimers:
1) This hasn't made the final cut yet
2) The story is set in England but I'm interested in other regimes too.
A lawyer, acting for a witness, discovers the witness has been colluding with another witness about what they're going to testify.
Does the lawyer have a legal responsibility to fess up or does client confidentiality take priority?
Thanks for your help,
AJ
IANAL!
The lawyer - client privilege may not cover the act of collusion, even if it still covers the information that is being shared between the two that are colluding!
I believe the lawyer has a duty to report the collusion. Not doing so could result in him or her being disbarred if it is discovered later. The lawyer, depending on jurisdiction, may even be vulnerable to criminal charges.
The wiki on Attorney-Client privilege lists two conditions where it does not apply:
There are a number of exceptions to the privilege in most jurisdictions, chief among them:
*the communication was made in the presence of individuals who were neither attorney nor client, or was disclosed to such individuals,
*the communication was made for the purpose of committing a crime or tort,
The lawyer, depending on jurisdiction, may even be vulnerable to criminal charges.
Only if the collusion was between witnesses in a criminal case. The collusion itself would not be criminal if it was only a civil case.
A lawyer, acting for a witness,
I don't understand. Is the lawyer the witness's lawyer? Why would a witness have an attorney?
Self protection. Anything said can and will be used against you. Your lawyer would prevent you from saying anything that can incriminate you. Obvious example: Craig and I had just sold some crack when this other fellow pulled a gun and robbed us.
See the problem? your song should be My name is XXX and I want my lawyer.
See the problem? your song should be My name is XXX and I want my lawyer.
That would apply when the police are questioning you. It would not fly when you are in court on the witness stand.
It really depends, You of course can't perjure yourself and always have the right to plead the fifth. A lawyer can challenge the relevancy of a question. Tell you right now would be an awesome time to plead the fifth,ect.
I've forced myself out of being a witness by telling lawyers on both sides that I will ask to be declared a hostile witness to both parties by the court and threatening to put everybody's dirty laundry before the jury.
statements as prelude to actual answers. ex: was John angry with Marsha? She slept with three of his friends so I would think he was. Again an obvious example and you would have to be a bit slicker in presentation. It doesn't take much to hinder a lawyers designs on a case.
A lawyer can challenge the relevancy of a question. Tell you right now would be an awesome time to plead the fifth,ect.
Only a lawyer for one of the parties to the case. A lawyer representing a third party witness does not get to raise objections or provide real time advice while the witness is on the stand.
Self protection. Anything said can and will be used against you.
My error. I read "witness" as "jurist."
Shows you the problem of not having a good night's sleep.
I don't understand. Is the lawyer the witness's lawyer?
I don't know anything about English court procedure.
My understanding is that in the US an attorney who is not representing one of the parties for the case can not appear and represent the interests of a witness in any sort of official capacity during court proceedings. That said, a witness can hire a lawyer to act in an advisory capacity.
Switch, there are limits.
For example, if a suspect admits to their attorney they killed somebody, that is confidential. The crime has already been done.
However, if they admit to their attorney that they are GOING to kill somebody, then they actually have to report that, because failure to do so will result in a crime.
They are still an officer of the court, and have the legal obligation to protect others in the event of a crime not committed yet. In that, the protection of others overrules self-incrimination or confidentiality.
There was a case a few years ago like that. Guy was on trial for molesting his daughter. Admitted to his lawyer he did not molest that daughter, but was molesting the other. Lawyer reported it and asked to be removed from the case.
Switch, there are limits.
For example, if a suspect admits to their attorney they killed somebody, that is confidential. The crime has already been done.
This thread hasn't been about the attorney's knowing about some random crime, but very specifically about perjury and collusion between witnesses.
This thread hasn't been about the attorney's knowing about some random crime, but very specifically about perjury and collusion between witnesses.
In the case of my story, I'm not sure it's perjury because it's during the initial police investigation and the witnesses are not under oath.
Otherwise you nailed it.
AJ
For example, if a suspect admits to their attorney they killed somebody, that is confidential. The crime has already been done.
Not all killings are crimes, i.e., self-defense, justifiable homicide and, in Florida (probably elsewhere), stand your ground. It's not a crime if you kill someone in Georgia while you are trying to make a legal citizen's arrest (one in which you witnessed a felony being committed).
I don't understand. Is the lawyer the witness's lawyer? Why would a witness have an attorney?
The police want to question the witness but they're not sure whether he's also a suspect, so the witness feels he needs legal advice during the interview.
AJ
It would depend on how the lawyer came to learn his client was colluding with another witness.
Client confidentiality covers information the client tells the lawyer. If the lawyer learns of the collusion from another source, client confidentiality does not apply.
I don't know about Great Briton, but in the US, lawyers are considered officers of the court. As such, they have a responsibility to notify the court of any improper conduct.
but in the US, lawyers are considered officers of the court. As such, they have a responsibility to notify the court of any improper conduct.
I don't think such collusion between witnesses would necessarily be improper outside of a criminal trial.
I would suggest using British terms if your story is based there.
For that, I would further research the difference between a Barrister and a Solicitor.
While there are similarities between British and American versions (attorney vs lawyer), the British variants are sufficiently different both in subtlety and distinction, to skew the story realism if you get them confused.
You will need that information before your question can be answered. I've dealt with the British legal system a few times in the distant past, but not enough to properly advise beyond the above.
What if witness 1 & 2 are called by the defence and attorney for witness 1 learns about the collusion and warns attorney for defence they are going to lie on the stand but calls them anyway. Could the defence attorney be charged with suborning perjury?
Or does suborning perjury only apply to prosecutors since so many defence attorneys call their clients to the stand knowing full well they are going to lie their asses off.
What if witness 1 & 2 are called by the defence and attorney for witness 1 learns about the collusion and warns attorney for defence they are going to lie on the stand but calls them anyway. Could the defence attorney be charged with suborning perjury?
In the US, if a defense attorney puts a witness on the stand knowing the witness will commit perjury and the judge finds out, the defense attorney can get into major trouble, disbarment on top of possible criminal charges.
since so many defence attorneys call their clients to the stand knowing full well they are going to lie their asses off.
In terms of the attorney's legal and ethical obligations to the court, there is a huge difference between suspecting that a witness will lie, and having positive specific knowledge that a specific witness intends to commit perjury.
In terms of the attorney's legal and ethical obligations to the court, there is a huge difference between suspecting that a witness will lie, and having positive specific knowledge that a specific witness intends to commit perjury.
I'm not talking about a witness but the defendant himself. I find it hard to believe that defence attorneys are that gulable.
I'm not talking about a witness but the defendant himself. I find it hard to believe that defence attorneys are that gulable.
First, even with the defendant. They don't have to be gullible, a violation requires positive actual knowledge of an intent to lie. Don't ask, don't tell, that's all it takes for the attorney to be safe.
Second, it's actually fairly rare in the US for a defendant to testify at trial (after you get to trial, 80+% of cases end in plea deals). And most of the time, when it does happen, it happens against the advice of counsel.
ETA: You have to understand that in the US in a criminal trial, it is actually the defendant that is in charge, not the defense attorney. The defense attorney is there to handle procedural matters and advise the defendant.
It's the defendant who decides what plea to enter, even in the case of insanity.
A defense attorney would have to get the defendant declared incompetent before he could enter an insanity plea against the defendants wishes.
At least in the US, the attorney-client privilege only applies to past events. The fact that the client is planning to commit a fraud on the court in the future does not implicate the privilege at all. Actually, if the attorney KNOWS that his client is planning to commit a fraud upon the court he is ethically required to reveal that information.
Actually, if the attorney KNOWS that his client is planning to commit a fraud upon the court he is ethically required to reveal that information.
Yes, but for that ethical obligation to the court to be triggered, it requires more specific knowledge than "I believe that my client is guilty therefore if he testifies he will lie."