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If a person goes to another person for legal advice and the person is deceitful in some way about being a lawyer, does attorney-client privilege still apply?

For instance, maybe the person does not quite know what a real diploma from Harvard Law School looks like, or that the piece of paper on the office wall saying the person passed the New York Bar Exam is not actual New York Bar correspondence.

I'm specifically wondering whether the person who is not a real lawyer can be compelled to give testimony on matters that his client thought were confidential, and would have been confidential if not for the deceit.

V2Blast
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Neil Meyer
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    To clarify, an attorney-client privilege belongs to the client and not the attorney, so if the client sues the the attorney or alleged attorney, the attorney-client privilege could be waived even if it existed. I assume the question is instead about whether someone making a statement to someone they reasonable believed in good faith to be an attorney, who was not actually an attorney, benefits from the attorney-client privilege in litigation with a third-party or a criminal case against the client. Is this a correct understanding of the question? (FWIW. I don't know the answer on the merits.) – ohwilleke Jul 12 '23 at 16:30
  • @ohwilleke Yes fake diplomas and bar acceptance notices on the office wall. – Neil Meyer Jul 12 '23 at 16:33
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    Related: Attorney-Client Privilege after disbarment – Sneftel Jul 12 '23 at 17:19
  • @Sneftel Good catch. At least in CA the privilege still applies and this question is probably a duplicate although the reasonableness of the belief in privilege analysis is a little different when the person was a lawyer at the start of the representation and then was disbarred and continued to represent someone without informing them of that fact. But that probably isn't a material distinction. – ohwilleke Jul 12 '23 at 18:34

2 Answers2

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A similar issue came up in my answer to Can a private person deceive a defendant to obtain evidence?. I don't think the question itself is a duplicate, so instead I'll just copy the relevant section from my answer with minor edits.

The short answer is yes, the privilege applies.

The case of US v. Tyler, 745 F. Supp. 423 (W.D. Mich. 1990) matches your hypothetical almost exactly. The defendant, James Tyler, shared a prison cell with Melvin Deutsch, who said that he was a lawyer, had what appeared to be a law school diploma on the wall of his cell, and was addressed as "counselor" by other inmates; but in fact was not a lawyer. Nevertheless, correspondence between Tyler and Deutsch regarding Tyler's legal issues was held to be privileged and inadmissible.

Tyler was held to have had a reasonable belief that Deutsch was a lawyer, despite that Deutsch had never been licensed to practice law in any jurisdiction, and that the law school diploma was (presumably) fake. Tyler evidently didn't check on either of those things, and the court did not seem to think that he reasonably should have.

Also, Tyler apparently did not know the seemingly obvious fact that a convicted felon cannot practice law, let alone while actually in prison. However, this was not felt by the court to be "ingenuous": "To expect a layperson to be familiar with the internal discipline procedures of the Bar is unreasonable."

There is also a discussion of such situations in the following article:

Grace M. Giesel, Upjohn Warnings, The Attorney-client Privilege, And Principles Of Lawyer Ethics: Achieving Harmony, 65 U. Miami L. Rev. 109 (2015). Available at this link

See Section IV.D.2 on page 140:

In addition to applying the honest-and-reasonable-belief analysis in the attorney-client privilege setting to the question of representational relationship, courts have also applied the analysis when the person consulted is not, in fact, a lawyer. The courts addressing this issue have stated that the privilege applies to a communication even if the person consulted is not admitted to any bar and has enjoyed no legal training. If the putative client honestly and reasonably believes that the person consulted is a lawyer, and if the other requirements of the privilege are satisfied, the privilege applies even though the person consulted is, in fact, not a lawyer.

See the article for additional citations.

The article also mentions that certain states make this principle explicit by statute. For instance, the Kentucky Rules of Evidence, Rule 503(a)(3):

"Lawyer" means a person authorized, or reasonably believed by the client to be authorized to engage in the practice of law in any state or nation.

Nate Eldredge
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    COULD Tyler even have checked whether that law school was legitimate? I doubt many prisons have amenities that would allow them to check whether a law school existed at a certain point in time. – Nzall Jul 13 '23 at 14:04
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    @Nzall: Prisoners are usually allowed to send and receive postal mail, and to make some telephone calls. So he probably could have checked if he'd really tried. It would certainly have been more difficult, though. – Nate Eldredge Jul 13 '23 at 15:29
  • @NateEldredge: If a school goes out of business, will a post office perpetually forward mail to someone who can process record requests, or return correspondence with a change-of-address notice saying where to submit correspondence? – supercat Jul 13 '23 at 19:51
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    @supercat I believe the implication was that he could send a letter to a friend outside asking if the law school was real/established at the time, and the non-incarcerated friend would easily be able to access the relevant information and reply. – Ryan Jensen Jul 13 '23 at 19:57
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    It seems I garbled the facts slightly. It was during an interview with prosecutors that Deutsch claimed to have a degree from a particular law school, and it was found that although the school named was real, it did not yet exist in the year when Deutsch said he had graduated. The opinion doesn't actually say whether his "diploma" listed that same school / year, or a different one. – Nate Eldredge Jul 14 '23 at 00:20
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Yes, it does, in any reasonable jurisdiction. The argument is as follows.

I sometimes find it helps me understand the legal reasoning if I reverse the actual practice. So let's suppose that attorney client privilege doesn't apply with a fake lawyer. John Doe is arrested, he doesn't have a lawyer, until someone enters his cell and offers to represent him. After an interviewer, it turns out that the "lawyer" is actually a fake, could use who was put up to the job by dodgy police. They debrief their stooge, and now have information that they could use against Mr. Doe...

Simon Crase
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    Hmm, I suppose police misconduct / malfeasance is one potential, but narrow, scenario. What about when John goes to the fake lawyer's office with no police involvement? And can you cite something from a reputable source to support your first sentence as it seems to contradict Tyler - assuming the U.S. is a "reasonable jurisdiction" ;) –  Jul 14 '23 at 06:27
  • @Rick The US Constitution was created by people who were skeptical about the competence/good intentions of people in authority. In particular, the Bill of Rights reads as if it was written by folks who mistrusted the government, especially the police. If there is one true religion, and the Government figured out which one it was, what would be the harm in establishing it? If you can trust the government, why not let them look after the guns for everybody? If police misconduct is rare, it is because the constitution makes it as difficult as possible. – Simon Crase Jul 14 '23 at 21:16
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    @SimonCrase In Common Sense, Thomas Paine said pointedly: "When we are planning for posterity, we ought to remember that virtue is not hereditary." In other words, let's have lots of checks and balances to limit how many bad decisions a small group of officials is allowed to impose upon all their fellow citizens. – Lorendiac Jul 14 '23 at 23:34
  • There is the case of a fake lawyer actually collecting evidence against you. I think more likely would be the case of someone who wants to be a lawyer but isn't, who will try to act in your best interest as good as they can, like a real lawyer would, but who could be forced to tell things that you both believed were privileged. – gnasher729 Jul 18 '23 at 00:09