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Lawyers Duty to Client Never Dies

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About a week after the heinous attack on Dallas police officers, media sought to understand more about the killer. They learned the gunman was honorably discharged from the military but knew he had been involved in some sort of sexual harassment. In their quest to fill the ever-growing hunger for details to report, the Associated Press reached out to the shooter’s prior military lawyer for an explanation.

Army lawyer Bradford Glendening was assigned to represent Johnson following an accusation of sexual harassment against him by a female soldier in his unit, Glendening said. Exactly what Johnson is accused of doing has not been made public.

Johnson deployed to Afghanistan in 2013, but was sent back to Texas with the recommendation that he be removed from the Army with an other-than-honorable discharge, said Glendening, who prepared the other-than-honorable discharge papers in September 2014.

However, Johnson didn’t actually leave the service until the following April, according to service records released by the Army that do not classify his discharge.

His attorney later learned that the discharge was honorable.

“I was shocked to see that,” he told The Associated Press by phone last week, less than 24 hours after the Dallas shooting. He said he never received final documentation on how Johnson’s case was resolved.

“Somebody really screwed up but to my client’s benefit,” he said.

Seems like a simple statement. Glendening, the gunman’s lawyer, filled in the basic details: a sexual harassment allegation, a recommendation that he be discharged other than honorably, and somebody really screwed up. Well, arguably he got that part right: someone likely did screw up. It seems Glendening revealed confidential or privileged information about his former client.

The attorney suggested that Johnson may have had other problems in his unit.

“It was not just the act itself,” Glendening said. “I’m sure that this guy was the black sheep of his unit. Every unit’s got one.”

This short media statement immediately became the topic of debate for lawyers across Texas. The thoughts and answers were varied. Some lawyers opined that it may not be “right” to have revealed privileged information, but there was no one around to sue for damages since the client is now deceased. Some flat out claimed there was no privilege when the client is dead. Neither of these opinions is correct.

The attorney-client privilege survives not only the attorney-client relationship, but also the client’s life. A lawyer cannot divulge confidential communications between his client and him ever, even after the client dies. Swidler & Berlin v. United States, 524 U.S. 399 (1998). Simply put, the attorney-client privilege is forever. And, this makes sense. Clients seek advice for a variety of reasons. Lawyers need to be able to provide accurate advice. This rule encourages clients to reveal even the most egregious facts to her lawyer, in confidence, so the lawyer may render the best possible advice knowing all the facts.

Professional rules for lawyers go even further:

The Rules of Professional Conduct generally are interpreted as protecting posthumous client confidences and all material relating to the representation of a client. The American Bar Association’s Model Rule of Professional Conduct 1.6 and similar state bar rules prohibit attorneys from disclosing information relating to their representation of a client without the client’s consent. A number of state bar opinions indicate that the ethical obligation to client confidentiality survives the death of the client. The purposes of the ethical rules on confidentiality overlap with goals of the attorney-client privilege and of work-product protection but also are said to be broader, in that they support the reputation of the legal profession. To the extent that the ethical obligation is seen as creating a duty to a client, the analysis that the privilege survives the death of the client would also suggest that counsel’s ethical obligations support the same result.

Texas Rules are similar. Disciplinary Rule 1.05 defines confidential information as including both privileged information and unprivileged client information.

“Privileged information” refers to the information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. “Unprivileged client information” means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

As the Disciplinary Rule refers to Rule 503, Texas Rules of Evidence, it’s important to compare and include Rule 503:

503(b)(2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer’s representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney–client relationship.

503(c) Who May Claim. The privilege may be claimed by: (1) the client; 19 (2) the client’s guardian or conservator; (3) a deceased client’s personal representative; or (4) the successor, trustee, or similar representative of a corporation, association, or other organization or entity—whether or not in existence.
The person who was the client’s lawyer or the lawyer’s representative when the communication was made may claim the privilege on the client’s behalf—and is presumed to have authority to do so.

Generally, confidential information should not be disclosed. While the rules (both disciplinary and evidentiary) provide for instances in which a lawyer may reveal confidential information and unprivileged client information, the exceptions have nothing to do with revealing information after the client’s death. The exceptions allow disclosure when authorized (expressly or impliedly) by the client or the representation, to defend the lawyer against claims of wrongful conduct, to apply with a court order or other law, to rectify a criminal or fraudulent act by the client using the lawyer’s services, and to prevent the client from committing a criminal or fraudulent act likely to cause death or serious bodily injury to a person, among other similar exceptions. But, nowhere do the rules allow for revealing confidential information because the client or former client is now deceased. In fact, Texas Rule of Evidence 503 is broader and extends the ability to claim the privilege to the deceased client’s personal representative, providing support for the privilege surviving the death of the client. Even after the client passes, his representative can still claim the privilege.

Remember, confidential information includes unprivileged information, which means all information acquired by the lawyer during the course of or by reason of the representation of the client. That’s very broad language. No matter the source of the information, any information acquired during the representation is subject to the rules of confidentiality.

And, because privilege survives the client’s death, all that broad information is forever the lawyer’s secret. It is her duty to maintain those secrets even where the media cries for answers; even when the former client is accused of some heinous act.

 

*Update:
Since posting, comments on social media suggest the privilege dies with the client. I have been unable to locate any Texas or Federal case to support such a position. But, there is a fairly recent case that distinguishes a “Corporation” as a client and holding privilege does not survive the death of a corporation: SEC v. Carrillo Huettel LLP, 2015 U.S. Dist. LEXIS 45988 (S.D.N.Y. April 8, 2015).

Additionally, see Dead Men’s Lawyers Tell No Tales: The Attorney-Client Privilege Survives Death by Jon J. Kramer
The Journal of Criminal Law and Criminology (1973-), Vol. 89, No. 3 (Spring, 1999), pp. 941-972.

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