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Inspired by Yakuza Judgement.

Say that Andy the Attorney is potentially representing Dave the defendant. But while they talk, Andy finds Dave to be a repulsive human being who's obviously guilty of the crime. As a good human being, Andy quits being Dave's attorney, and instead airs out all the dirty laundry to the prosecution, to get Dave locked behind bars for good.

Are there any consequences for this? Can Andy be charged with anything? Can Dave declare a mistrial? Etc.

Edit: I didn't want to give explicit examples, but what if Dave was openly admitting to having committed the crime, and was boasting about committing more crimes as soon as Andy gets him off the hook. At some point, isn't Andy allowed to, as a good Samaritan, turn on Dave? What if Dave was openly boasting about acts of terrorism he was about to commit, etc.. Is Andy forced to be a tool/bystander to Dave's villainy? Is Andy ever allowed to take action against Dave without consequence? Similar to how even therapists are allowed to speak up if their client is dangerous.

chausies
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    What does "potentially representing" mean? (I'm not a lawyer; does that term have special meaning?) – John Gordon Feb 22 '23 at 01:15
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    For "acts of terrorism [Dave] was about to commit", Andy is allowed to disclose them (and he could even be criminally convicted if he does not). For past acts, however, there is no legal way around attorney-client privilege, so Andy would sacrifice his career. – bobuhito Feb 22 '23 at 08:29
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    When I read the title, I was thinking "why would it ever be acceptable for an attorney to try to seduce their client" – Jojo Feb 22 '23 at 12:24
  • You may find this answer interesting: https://law.stackexchange.com/a/66653/33934 – Todd Wilcox Feb 22 '23 at 15:45
  • In The Lincoln Lawyer the bad guy engaged the lawyer precisely because the guy was the actual murderer in a previous case where the lawyer had failed to save the innocent accused from jail — so that the lawyer could not turn on the bad guy due to client-attorney privilege. He did find a way to do it though without being disbarred. – Greendrake Feb 22 '23 at 16:06
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    I think the premise of the question ignores some important functions of a defense attorney. Even if you know your client is guilty, you're still responsible for ensuring that they get their due process, that the prosecution doesn't try anything underhanded, that any sentencing or plea deals are fair, etc. A world where defense attorneys can betray their clients is a world where attorneys can't be trusted and thus a world where it's almost impossible to adequately defend yourself (especially against a corrupt system). – bta Feb 22 '23 at 19:45
  • I think we should avoid loose wording such as '… who's obviously guilty of the crime' and stick to the facts.

    Correct me who can, and is it not accepted that lawyers do not ask - in fact, want not to know - whether their clients are guilt, precisely because if they did know, they would have a duty to disclose that?

     – Robbie Goodwin Feb 22 '23 at 23:12
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    This is apart from your question a bit, but Japanese fiction has a very strong tendency to view defense extremely negatively (the message to the game's intro is basically "legal defense is tantamount to murder" but that's not even that unusual) and Japanese conviction rates make the American legal system look downright soft. – Casey Feb 23 '23 at 02:56
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    I know fictional TV series are not necessarily any guide to what happens in the real world, but I can remember episodes of both Perry Mason (for the US) and Rumpole of the Bailey (for England and Wales) where the title characters had to follow special procedures because they knew for sure their clients were guilty. Can anyone expand? – Daniel Hatton Feb 24 '23 at 15:19
  • This also happened in the U.S. movie, And Justice for All, with Al Pacino as a lawyer that basically loses it, when defending a client he knows is guilty. – John C Feb 24 '23 at 15:49

6 Answers6

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Andy would be almost immediately disbarred and might also be held in contempt of court.

Andy would be disbarred for reasons including his violations of the duty of confidentiality owed by Andy to his client Dave under Rule of Professional Conduct 1.6 in a context like this one. This would be considered an open and shut blatant violation of one of the highest and most serious ethical obligations that an attorney has, and is neck and neck with the rule against stealing money from your clients as a ground for near automatic disbarment. The clarity and severity of the breach of professional ethics by Andy in this regard (and other aspects such as his fiduciary duties to his clients and duty of zealous and diligent advocacy for his client) leaves no ambiguity regarding the appropriate level of discipline.

Andy might be held in contempt of court for reasons including knowingly disrupting a court proceeding in which he was or is an attorney of record. He can't quit representing Dave until the court grants his permission to do so.

Dave's trial would probably not go forward or his conviction would be set aside. In all likelihood, a trial with a new prosecutor not exposed to the information would be arranged to avoid the taint of the breach of privilege.

This would be because providing the prosecutor with inadmissible evidence taints the ability of the prosecutor to proceed untainted by inadmissible evidence and would constitute ineffective assistance of counsel which is one of the grounds for setting aside a conviction for a violation of the 6th Amendment to the US Constitution, which grants the right to effective counsel.

what if Dave was openly admitting to having committed the crime,

This is utterly irrelevant. Criminal defense lawyers aren't only or mostly for innocent people, and their main job isn't really to get people acquitted of crimes they committed. Instead, a criminal defense lawyer's job is to hold the prosecution to their duties to prove their case, to force the criminal justice system to comply with civil liberties protections, to prevent convictions of excessive charges for the conduct committed, and finally to secure appropriate sentences for their clients (which usually means negotiating a plea bargain). Criminal defense lawyers prevent defendants from being convicted and sentenced in circumstances where they wouldn't have been convicted or sentenced if they weren't ignorant of the legal system (which most criminal defendants are).

what if Dave was . . . was boasting about committing more crimes as soon as Andy gets him off the hook.

A vague statement like this does not trigger any right of Dave to take any action differently. It's basically bravado or a statement about his own character in general.

What if Dave was openly boasting about acts of terrorism he was about to commit, etc.

If he was about to commit an act of terrorism but was thwarted, Andy needs to keep his mouth shut.

If Andy knows that Dave is about to imminently commit a specific terrorist act then this very distinct fact pattern raised different issues and belongs in a separate question. The crime-fraud exception to the duty of confidentiality, and the way that an ethical lawyer can take appropriate action in a way that minimizes harm to the client, all involve considerations very different from those in the main question.

Is Andy forced to be a tool/bystander to Dave's villainy? Is Andy ever allowed to take action against Dave without consequence?

The duty of a lawyer not to use his services to further a crime is also a very distinct fact pattern. But, failing to report imminent unilateral acts by a client in furtherance of a crime or fraud is very different from not using information about a client's past actions or vague future intentions against the client, and is also different from using a lawyer as a tool to commit a crime or fraud.

These are three distinct situations. A different analysis applies to each one.

ohwilleke
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  • Is this always the case? I didn't want to give explicit examples, but what if Dave was openly admitting to having committed the crime, and was boasting about committing more crimes as soon as Andy gets him off the hook. At some point, isn't Andy allowed to, as a good samaritan, turn on Dave? What if Dave was openly boasting about acts of terrorism he was about to commit, etc.. Is Andy forced to be a tool/bystander to Dave's villainy? Or is Andy ever allowed to take action against Dave without consequence? Similar to how even therapists are allowed to speak up if their client is dangerous. – chausies Feb 21 '23 at 15:09
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    And if Dave's trial did go forward, he could appeal for inadequate representation of council. It's very difficult to succeed on that claim, but in a case where the defense has acted to support the prosecution, that could still pass muster. Remember that in the United States, access to legal council as a criminal defendant is a Constitutional right, granted by the 6th amendment: "In all criminal prosecutions, the accused shall enjoy the right[...] to have the Assistance of Counsel for his defence." – A. R. Feb 21 '23 at 15:39
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    @chausies, how often does it really arise that a defendant's confession would be crucial to the outcome of a trial, and that defendant cynically confesses all to his lawyer in a bragging fashion, but actually wants to be acquitted and stay out of prison? By contrast, how often would a lawyer be deprived of a clear impression of the facts and a facility to discuss with their client, if they were suspected of playing judge, jury, and executioner all by themselves? – Steve Feb 21 '23 at 15:46
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    @chausies "Is this always the case?" Yes. And, the notion that the main job of a criminal defense lawyer is to get innocent people acquitted profoundly misunderstands the nature of the job. – ohwilleke Feb 21 '23 at 16:37
  • @SyntaxJunkie Fair. I'll consider expanding the answer if time allows. – ohwilleke Feb 22 '23 at 01:45
  • @SyntaxJunkie I made a quick and dirty expansion of the answer. – ohwilleke Feb 22 '23 at 01:52
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    So I think one thing that needs to be addressed is Dave is telling Andy that he will commit more crimes and has explicit plans. Admitting to crimes after the fact is protected by attorney-client privilege. But it was my understanding that discussing future crimes was something attorneys were allowed to inform on. I would also point out that admitting to your lawyer that you committed the crimes you were accused of is something you should actually do because your attorney has to know the situation they are dealing with to get you the best defense. – hszmv Feb 22 '23 at 12:52
  • @hszmv a fully informed lawyer may be able to mount the best lawful defense, but a guilty defendant may calculate that they have the prospect of a better outcome by lying to everyone including the lawyer, who can only incorporate the defendant's own perjurious testimony if they believe it at the time to be true. Of course the risk to the defendant of this all unravelling may strongly encourage the defendant not to attempt it anyway. – Will Feb 22 '23 at 13:26
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    @Will Sometimes the best lawful defense is to take the plea deal given to you because you will lose at trial and the judge will sentence you as they see fit... and the prosecution is charging you for way more serious crimes. – hszmv Feb 22 '23 at 13:31
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    @hszmv of course it is; I was just pointing out that some defendants are not content to settle for a lawful defense – Will Feb 22 '23 at 13:56
  • @hszmv Justice Jackson just discussed that in a dissent from denial of cert. https://sentencing.typepad.com/sentencing_law_and_policy/2023/02/brief-dissent-from-the-denial-of-cert-on-plea-ineffectiveness-from-justice-jackson.html – ohwilleke Feb 22 '23 at 14:33
  • And this is if Andy just gave the evidence to the prosecutors. If he instead gave the information to the press, and it was publicly reported, you might then not be able to find a new attorney with no knowledge of the leaked information, and the whole trial could end up being thrown out. – Darrel Hoffman Feb 22 '23 at 14:46
  • @DarrelHoffman This would be unlikely to be the result, although there might be a change of venue in an extreme case which had very high levels of press coverage. – ohwilleke Feb 22 '23 at 14:48
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    @chausies I don't know a lot of law but it seems to me the question about a lawyer gaining knowledge of future crimes could be a separate question on this stack and I'd be very interested to read that. – Todd Wilcox Feb 22 '23 at 15:41
  • @ToddWilcox I agree. That could be a good question. Indeed, if you were so inclined, you could ask it. – ohwilleke Feb 23 '23 at 16:59
  • OP may have overcomplicated the question by asking about BOTH resigning from the case AND ratting on the client. You may want to also talk about the correct course of action. – Spencer Feb 24 '23 at 18:59
  • Mostly a good answer but one thing I'd add is that, in many states, attorneys are mandatory reporters of on-going child abuse. If Dave's crime is child abuse, and Andy discovers that Dave is continuing to commit child abuse, Andy may be required by law to disclose this information. This is not true of most other crimes. – Michael W. Feb 24 '23 at 20:08
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That evidence would not generally be admissible due to solicitor-client privilege that is up to the defendant to waive.

The attorney would be subject to disciplinary action by their oversight body (e.g. bar association).

I also question the premise that acting "as a good human being" implies violating one's duties to the client and the legal system.

There is a very narrow exception for public safety (Smith v. Jones, [1999] 1 S.C.R. 455): when there is an clear and imminent risk of serious bodily harm or death to an identifiable person or group.

Jen
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    Note that "clear and imminent risk" is something like the client telling the lawyer "stay away from the courtroom on Monday: I'm going to shoot the place up". – Mark Feb 22 '23 at 02:14
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Andy can't "quit"

Andy is Dave's lawyer and this is a position that one cannot just "quit".

In general, defence lawyers would prefer to have upstanding human beings who are innocent of the crime but, bye-and-large, those people don't get charged with a crime. It is an established fact that most crimes are committed by criminals. Defending guilty people is most of what defence lawyers do.

If Andy is not yet Dave's lawyer then, if Andy is in private practice, he doesn't have to take the job. If Andy is a public defendant or a court-appointed representative then Andy doesn't even have that choice.

Either way, once Andy is Dave's lawyer then, beyond a certain point in the trial, he is Dave's lawyer for the duration of the case barring extraordinary circumstances (like Andy dying or becoming gravely ill). If Andy wants to "Quit" or Dave wants to "fire" Andy, they must get the permission of the court and it will only be given for a very good reason. Dave being "a repulsive human being who's obviously guilty of the crime" is not such a reason - Dave is entitled to representation and Andy is it.

Andy can't throw the trial

Andy must represent Dave to the best of Andy's ability, personal feelings notwithstanding. Failing to do so can lead to Andy being disciplined and ultimately no longer being a lawyer.

At the same time, Andy can't deceive the court or allow the court to be deceived. This will restrict the strategies that Andy can use in Dave's defence but that's just how it is.

Please note that there is a huge difference between, say, killing someone and murdering them. It is not enough for the prosecution to prove that Dave killed the victim - that may even be uncontested; they have to prove that the killing was unlawful and intentional as well.

Andy can't reveal what he knows

Everything that Andy learns while he is Dave's lawyer is subject to attorney-client privilege. That is, it's a secret that only Dave is allowed to break - if Andy does so then he's on the road to no longer being a lawyer.

In any event, anything that is subject to privilege can't be used in court unless Dave agrees to it being used.

Dale M
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    It might be worth also noting that Andy can't lie to the court. That is, once Dave tells Andy that he committed the crime, nothing about the attorney-client relationship can compel Andy to present arguments at court which assert that Dave didn't do it. Andy can and should argue that the prosecution's evidence is inadequate, or that reasonable doubt exists, but he can't, for example, present Dave's manufactured alibi that he was in Poughkeepsie as the truth, even if Dave insists he do so. – R.M. Feb 22 '23 at 02:56
  • One of the regulars here - can’t remember which one - said that defending an innocent man is actually the hardest thing to do. – gnasher729 Feb 22 '23 at 10:14
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    @R.M. If attorneys can't lie to the court, why don't all attorneys of a defendant who has always claimed to be innocent use a closing argument including the line "The defendant did not do it" or, more precisely, "The defendant did not do it even to my knowledge"? If jurors were all aware of this rule, that should help those defendants a little bit...do you have a reference to help me understand this? – bobuhito Feb 22 '23 at 14:52
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    @R.M.: While attorneys are not permitted to lie to the court, It is not a lie for an attorney to establish reasonable doubt, even if the attorney knows the defendant is guilty. – Brian Feb 22 '23 at 15:01
  • @Brian "If It Doesn't Fit, You Must Acquit" OMG, I think I cracked the code! – Andy Feb 22 '23 at 21:16
  • @R.M. After further thought (continuing to apply game theory to the courts), I suppose an attorney who knows his client is guilty would just recommend that the client fire him (and not confess his guilt to the new attorney). Per Dale's answer, some different reason would need to be found for this firing. Anyway, the possibility of the final defense attorney ever knowing his client is guilty, and how to proceed in trial, is therefore moot. – bobuhito Feb 23 '23 at 01:24
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    @bobuhito an attorney with a guilty client can a) assist that client in a plea bargain b) require the prosecution to prove that guilt without deceiving the court - the prosecution doesn’t know what the defence knows c) vigilantly defend the client’s rights against improperly obtained or otherwise tainted evidence d) challenge the prosecution’s interpretation of the evidence e) raise legitimate defences. There is a huge difference between killing someone and murdering them. – Dale M Feb 23 '23 at 06:49
  • @DaleM I understand your points. My point, from my earliest comment, is just that the defendant would be best served by a "twin" lawyer, exactly the same except not knowing that the defendant is guilty. I know it's a tiny difference, but juries should be a little more suspicious of a defendant with a lawyer that never directly says that his client is innocent. – bobuhito Feb 23 '23 at 08:23
  • @DaleM: What do you do when prosecuting attourney points out that lawyers that know their clients are guilty don't argue their client isn't guilty? On the related note, if this becomes public knowledge, the the prosecuting attourney won't need to point it out anymore. – Joshua Feb 23 '23 at 17:56
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Depending on a number of factors, Andy may not actually be allowed even to quit as Dave's attorney, especially if proceedings have already started. Under the 6th Amendment, Dave, having been accused of a crime, "enjoy[s] the right[...] to have the Assistance of Counsel for his defence [sic]."

If Andy is Dave's private attorney, he may submit to the court a motion to end his representation of Dave, and this may be granted if Dave has another lawyer to represent him or agrees to represent himself. Depending on jurisdiction, the same option may or may not be available to a court-appointed attorney, but in either case, if Dave has no other legal counsel, the judge will likely deny the motion and require Andy to continue his representation.

A. R.
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  • Good point. This is true. – ohwilleke Feb 22 '23 at 00:42
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    I've seen this in practice. I was a juror on a case where the defendant, during voire dire, started shouting "This person is not my lawyer! I don't want this guy as my lawyer!". This was a game he was running to try to get the trial (which had already been delayed by such tactics) delayed even further. After getting in a scuffle with the bailiffs and being hauled out of court, defendant's counsel attempted to withdraw from the case. The judge, though, was having none of it and trial proceeded. – Bob Jarvis - Слава Україні Feb 22 '23 at 18:10
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It is the duty of a defense attorney to defend even horrible clients. Furthermore, it's very likely that the talk you discuss is privileged, leading to the conviction being voided and Andy disbarred.

The only case where Andy would have any hope is if "boasting about committing more crimes as soon as Andy gets him off the hook" could reasonably be construed as falling under the "crime-fraud exception." This would depend on the details of the boasting, however, as it's not just generally expecting freedom as soon as he's off, but, per U.S. v. Zolin

The attorney-client privilege must necessarily protect the confidences of wrongdoers, but the reason for that protection–the centrality of open client and attorney communication to the proper functioning of our adversary system of justice–ceases to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing. It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the “seal of secrecy” between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime.

Merely getting him off the hook would not be such a communication.

Mary
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As a practical matter, Andy's only "out" is to get excused from the case, by the judge. And "I hate and disbelieve my client" is not an acceptable reason. Andy would need to come up with a pretty good reason.

Fortunately it would turn sharply on whether Andy did the leg-work to line up a replacement attorney Joan to represent Dave, and Joan has a good reputation and stands up and says "Yeah, I'm ready to go" - at that point the judge would likely agree even if the reason was thin.

That would especially be true if Joan was a better lawyer than Andy :)

Dave blabbing about credible future acts to the attorney, would oblige the attorney to report, or evaluate whether reporting is required. However, that would never happen. At the first whiff of such a disclosure, Andy would flat-out tell Dave, clearly and in the boldest possible terms, about that "duty to report". In essence "I can't hear about that, and if I do hear about that, this will happen".

Harper - Reinstate Monica
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