My previous post on an ethical dilemma garnered quite a response, so I'll just add a few more of my cents before we move on.
I chose to write about this particular scenario because I think it's an interesting challenge between our first instinct (both as lawyers and as laymen) that it's more ethical to be honest, and the actual Rules of Professional Conduct, which place confidentiality before honesty.
Obviously, I agree with ACS regarding confidentiality. While I didn't consult the Professional Rules (other than what I remembered from law school) in this situation, I did consult my supervisor (And, we're back to the "My supervisor told me to do it," which is where this all started).
My supervisor's position, conforming with the rules on confidentiality, was that when new counsel takes over, we only hand over what is part of the public record (the file that the court gives us at arraignment, any discovery received, and anything that was stated on the record).
That's what I've done throughout my tiny career, and this is the first time I've had an attorney call me back to ask me something substantive (as opposed to, "Page 5 is hard to read, can you fax that again?"). Thus, putting me in the situation of, ethically, having to place confidentility before honesty.
And which also makes me wonder whether "jasonpw" is right, and there was a specific reason why new counsel asked about a "written statement." For example, I sometimes have to use my clients' written statements to confront them ("This is a fine story you're telling now, but it's very different that what you wrote out for the police"). There may also be other reasons where a lawyer feels that they need any written statements.
I think that I was in an easier situation because I didn't have a written statement to turn over, either for or against my client. I found it much easier to say, "No, I don't have what you're looking for," than to have one and be unsure of whether to disclose it.
Now, as for the interview-by-suggestion technique that I addressed briefly in my original post, and which some of the responses mention. I know that there are attorneys who do this regularly. I know at least one attorney who barely asks his client a question before he provides them with what he believes to be their ideal defense. ("But it was for your own personal use, ok?" or "But you thought you were allowed to use that car, right?") While, I can't think of any particular ethical rules this violates, I think that (1) it just isn't my style - I'm in this job because I like to hear my clients' stories; and (2) I think it does a real disservice to your client has a unique defense or just really wants to be heard.
I've had trials where I know that if I could have given my client the ideal defense, if I could have told my client exactly what to say or how to testify, they could have had a better chance at acquittal. But I know that my clients aren't always that good at following suggestions, and I know that, ultimately, if those clients lose after telling their own story, they feel better that they had their day in court. Conversely, if they were convicted after telling the story the way that I coached them (or, more likely, some mixture of the my story and their story), they'll just feel that they were screwed by the system again. Which isn't to say that I don't help my clients by saying, "Here's why I think you can leave that part of the story out," but that's very different than saying, "Let's present an entirely different story than the one you originally told me, or than the one you would have originally told me if I ever gave you a chance to speak."
At this point, I don't think it's necessary to address every other comment but I am interested in throwing another fact into the hypothetical to see if it changes anyone's mind (particularly those of you that were with me).
What if the private attorney's message had instead said, "Hi, it's private attorney again. I spoke to client and she told me roommate is her alibi witness. I also spoke to the prosecutor, and she said that she'd just dismiss the case if I can get a written statement from the roommate. You said you spoke to the roommate, so I wanted to see if you took a written statement from her. I didn't see it in the file you sent me, but I just don't want to reinvent the wheel if you've already done it. Could you call me back and let me know? I'd really like to get client's case dismissed as soon as possible so she can get on with her life."
Anyone feel like this changes anything? Does anyone think that I have more of an obligation to come forward if the case is likely to be dismissed? Anyone feel like maybe I have less of an obligation, since, if the prosecutor is so willing to dismiss the case, maybe he knows something else that we don't know?