July 30, 2016 • By Dennis Beaver
As a direct result of the attorney-client privilege, whatever you say to a lawyer, at all times, is strictly confidential. Neither the lawyer not client can be forced to reveal what they discussed. True or False?
“The answer to that question will surprise most people,” Oshkosh, Wisconsin-based attorney Steven R. Sorenson tells You and the Law. The former President of his state’s Bar Association is regarded as one of our country’s top experts in legal ethics.
“Before the privilege exists, it must be shown that an attorney-client relationship has been developed. When a client reasonably believes that they have entered into a relationship of trust, then you have that legally recognized — and incredibly important — relationship.”
“At social occasions, lawyers are often asked legal questions. For example, if someone meets me at a party and says, ‘I got a speeding ticket last night, what do I do?’ There is no anticipation that this is truly an attorney-client relationship unless the attorney does more. For example if the attorney says ‘just go to court and plead not guilty’ they may have created the expectation that generates the relationship.
“If, at that same party, someone says, ‘May I give you a call tomorrow? I have a problem with my mother’s estate.’ If I say, ‘Sure,’ and they do call the next day, the moment I take that call, the person on the other end believes that we have a professional relationship, otherwise I would not be taking the call. The relationship exists.
“But if someone just goes online, gets the number of an attorney, calls, and when the lawyer comes on the line, say, ‘I just murdered my wife. What should I do?’ Too bad. There is no attorney client privilege at that point. Depending upon the state you are in, the lawyer could pick up the phone and call the police.
“There has to be a reasonable belief that a relationship exists and is voluntarily entered into by the lawyer. Once it does, confidential communications are kept secret and candor — complete honesty to each other is required — which becomes the bedrock of our profession,” Sorenson underscores.
For anyone serious about hiring a divorce lawyer, Sorenson has this important advice:
“Don’t procrastinate! Because if you do, there is a good chance that you could lose the chance to hire a truly good lawyer close by in your community if your spouse goes lawyer shopping.”
Here’s the way it works:
Wife does not want husband to hire any of the top divorce lawyers in town. So, she schedules meetings with all of them, revealing a considerable amount of information about the case. Her purpose is to make it impossible for hubby to retain any of the lawyers she has met with, since that lawyer could be disqualified, or “conflicted out,” as it is called in law.
“We have a colorful description of this unethical practice: Poisoning the Well,” Sorenson notes.
For anyone thinking of a little “well poisoning,” realize that most law firms specializing in family law charge their regular hourly rate for an initial consultation or refuse to meet. This discourages the spouse who wants to play games.
“Lawyers are required by our Rules of Professional Responsibility to represent clients to the best of their ability. But how can you do that when your client lies to you and you discover it?”
“When that happens — when your client tells you something that you know to be untrue, expecting that you will use that information in court — or worse yet — that he is going to lie in court, you have a duty to resign.”
One of the worst things a lawyer can do is to knowingly represent a falsehood to the court.
“Lawyers have an absolute duty to not misrepresent the facts or the law to a judge. For that reason, we often have a little chat with our clients and stress that, if we are going to win this case, you must be candid and honest. If you lie to me – we are dead meat.
“If, in the middle of a trial a lawyer discovers that the client is lying on the stand, ethically there is a duty to tell the judge, “Your honor, my client and I have a communication problem and I am unable to continue with the case.”
“Judges aren’t blind. They have been there before. The lawyer might be dismissed from the case,” Sorenson concludes.
And if not, just imagine the feeling of being represented by a lawyer who has lost faith in his client.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.