PROFESSIONAL RESPONSIBILITY Copyright February State Bar of California

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Jocelin Osborne
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1 Copyright February State Bar of California David has been arrested for and charged with murder and robbery. David made a telephone call to Attorney, a member of the California Bar. Attorney came to see David in the small rural jail in which David is being held and agreed to represent him. In an interview in the jail, David told Attorney that he killed the victim and stole the victim s shirt, shoes, and ring, and was wearing them when he was arrested. David also told Attorney that he had hidden the shirt and shoes as best he could in his cell, and that he had thrown the ring out of the cell window into a trash can behind the jail. David is now bare-chested, bare-fingered, and bare-footed. Attorney told David to do nothing else to hide or destroy evidence and David reluctantly agreed. Attorney then left, went behind the jail and looked into the trash can. The trash was empty except for a ring. At this point, Attorney heard a noise, looked up, and saw David throw a pair of shoes out of the cell window. The noise also attracted a police officer, who discovered the shoes and ring. The police officer asked Attorney what he knew about the ring and shoes. Attorney refused to tell the police officer anything about them. Attorney returned to the jail and spoke to David again. David told him that he had torn the shirt into strips, which he plans to burn. Attorney told David not to burn the strips, but David insisted that he will burn them. Attorney is called before the Grand Jury investigating the murder and robbery. Consistent with his ethical obligations: 1. Should Attorney have told the police officer anything about the shoes or the ring? Discuss. 2. Should Attorney tell the Grand Jury that David is threatening to burn the scraps of the shirt? Discuss. 3. May Attorney tell the Grand Jury anything about the other events described above? Discuss. 4. Should Attorney continue to represent David? Discuss.

In an interview in the jail, David told Attorney that he killed the victim and stole the victim s shirt, shoes, and ring, and was wearing them when he was arrested.

2 Copyright February Scott F. Pearce, Esq. Outline I. Should Attorney have told the police officer anything about the shoes or the ring? II. Should Attorney tell the Grand Jury that David is threatening to burn the scraps of the shirt? III. May Attorney tell the Grand Jury anything about the other events described above? A. The Initial Meeting B Attorney s Encounter with the Police Officer IV. Should Attorney Continue to Represent David?

Should Attorney tell the Grand Jury that David is threatening to burn the scraps of the shirt? III.

3 Copyright February Scott F. Pearce, Esq. Answer I. Should Attorney have told the police officer anything about the shoes or the ring? After David and Attorney met to discuss David s murder and robbery charges, a police officer was attracted by the noise of David throwing the stolen shoes out of his cell window. The officer discovered the ring and shoes that David had stolen from his victim. Attorney knew that David had stolen the ring and shoes, because David had confessed to the robbery and murder. Attorney learned this information as a result of confidential communications from his client. Attorney s duty of confidentiality, owed to the client, requires Attorney not to reveal this highly incriminating information to anyone. The police officer asked Attorney what he knew about the ring and the shoes. Attorney refused to tell the police officer anything about them. This was exactly what Attorney was required to do under the circumstances. By refusing to answer the police officer s question, Attorney lived up to his duty of confidentiality. Criminal defense attorneys have to walk a difficult ethical tightrope. While it is true that criminal defense lawyers owe duties of confidentiality and zealousness to their client, they also owe a duty of candor to the system of justice. Accordingly, Attorney cannot actively participate in the obstruction of justice by destroying or hiding evidence. It is important to note that, on two different occasions, Attorney instructed David not to destroy evidence. This shows that Attorney is appropriately concerned with upholding the integrity of our judicial system. Here, Attorney has not lied or otherwise obstructed justice for his client. Lawyer s conduct was proper. Attorney will not be subject to discipline for refusing to tell the officer anything about the shoes or the ring. II. Should Attorney tell the Grand Jury that David is threatening to burn the scraps of the shirt? After his encounter with the police officer, Attorney returned to the jail and spoke to David again. At this meeting, David told Attorney that he had torn the shirt into strips, which he intended to burn. The Grand Jury has called Attorney as part of its investigation of the murder and robbery. Attorney

The officer discovered the ring and shoes that David had stolen from his victim. Attorney knew that David had stolen the ring and shoes, because David had confessed to the robbery and murder.

4 owes the Grand Jury a duty of candor, but he still must protect David s confidences. The attorney-client privilege would be meaningless if grand juries were free to call criminal defense attorneys and force them to reveal their clients secrets. Attorney has properly told David not to burn the torn-up, stolen shirt, during their second meeting, but David has insisted that he will burn it. Attorney cannot actively aid his client in destroying evidence. Here again, Attorney has done what he should do. Attorney must fulfil his obligation to be honest in his dealings with the judicial system. He is forbidden from destroying evidence or otherwise obstructing justice. The issue here is whether this duty could be interpreted to require Attorney to reveal his client s confidences. In this case, the answer to this question is no, Attorney s duty of candor does not require him to reveal information told to him by the client in secrecy. Attorney should not tell the Grand Jury that David is threatening to burn the scraps of the shirt. Had David been threatening to commit a crime that could lead to death or to serious bodily injury, Attorney would have been allowed to disclose the information. III. May Attorney tell the Grand Jury anything about the other events described above? A. The Initial Meeting David confessed to the murder and robbery during his first meeting with Attorney. The confession is absolutely privileged, and Attorney may not tell the Grand Jury about it. David also admitted he was wearing the victim s shirt, ring and shoes at the time he was arrested, and that he had discarded the ring and tried to hide the shoes and the shirt. This information is part of David s confession, so Attorney may not tell the Grand Jury about it. B Attorney s Encounter with the Police Officer Attorney may tell the Grand Jury that he had met the police officer outside the jail. He may also admit that he refused to tell the officer anything about the shoes and the ring. This information does not violate the attorney-client privilege; revealing it would be consistent with Attorney s duty of candor owed to the Grand Jury.

Attorney has properly told David not to burn the torn-up, stolen shirt, during their second meeting, but David has insisted that he will burn it.

5 D. Conclusion Attorney may not tell the Grand Jury anything about his communication with David, but he is free to tell them about his encounter with the police officer. IV. Should Attorney Continue to Represent David? Nothing in these facts obligates Attorney to withdraw from representing David, however it probably would be prudent for Attorney to withdraw. Attorney has consistently advised David not to hide or destroy evidence, but David has refused to follow this advice. Now, Attorney has had to appear before the Grand Jury and do a balancing act with his duties of confidentiality and candor. This could compromise Attorney s ability to zealously represent David. It is also possible that he could be called as a material witness in David s trial, since Attorney saw David throw the shoes out of the window. Attorney would be well-advised to withdraw, but he will not be subject to discipline if he continues to represent David.

Attorney has consistently advised David not to hide or destroy evidence, but David has refused to follow this advice.

Scott Pearce's Master Essay Method. Professional Responsibility

Scott Pearce's Master Essay Method Professional Responsibility APPROACH I. Basics of the Legal Profession A. Becoming a lawyer B. Disciplining a lawyer II. Attorney-Client Relations A. Getting a Client