Opening The Blonde Justice Mailbag

A commenter named Daniel asks,
this is my question for you:
when a criminal def is represented by the public defenders office can she bring in to the office another attorney WITHOOUT the consent of the defendant THE ATTORNEY WORKS for the client, (farretta -v- calif 1975) it is the assistant of counsel that is found in the 6th amend.
is this NOT a breach of ethics such as confidentiality attorney client privilege etc. i am seriously thinking about taking legal action against this PD for legal malpractice for violition of this privilege
WHAT DO U THINK ?
daniel
salina kansas


Well, Daniel, first, I'm sorry to hear that you're unhappy with your relationship with your public defender.

But let me make sure I've got the facts of your question right. You were represented by one lawyer in the PD's office. Let's say her name is Jane Smith. Now she brought another lawyer to work on your case, and presumably discussed your case with that lawyer without your permission. And your concern is that this violates privilege.

I think the short answer is that it depends who this other lawyer is. Generally, if the second lawyer is also a public defender, the answer is no, your lawyer did the right thing.

I've never worked in Kansas, but in the public defenders offices where I have interned and worked, it is very common, and, in fact, considered good practice to discuss your case with other lawyers in the office. Our ethics classes teach us that when we're not sure the right way to proceed on something, it's often a good idea to get a second opinion from a colleague or a supervisor. So long as they're in the same office (meaning the public defender's office) it's not a breach of privilege.

Often, as a public defender, I would ask my colleagues about a case, or, even ask them to accompany me to meet a client or to court if I think they have something particular they could add.

The way to think about it is, that even if your lawyer in Jane Smith from the public defender's office, you're really represented by the public defender's office as a whole. For example, if Jane Smith quit tomorrow, you're not without a lawyer, someone from the P.D.'s office will take over her cases. And that's the same reason why it's often a conflict for the P.D.'s office to represent co-defendants in case, even though it may seem that they would have separate lawyers, they would both ultimately be represented by the same "firm," here, the public defender's office. (This does raise a whole separate issue of "Chinese Walls" within a firm, but we can save that discussion for another day.)

What if the second lawyer does not work with or for the P.D.'s office? Then you might have an issue. It's hard for me to imagine the scenario where this applies, but let's say that you have a criminal case and you're represented by Jane Smith of the P.D.'s office, and you're also an immigrant. Jane foresees an immigration issue and picks up the phone to call her friend Bob, an immigration lawyer who does NOT work with or for the P.D.'s office, and she discusses your case.

Jane is probably in the wrong, and she probably should have asked your permission before making this call. But the other issue about the lawsuit becomes, how were you hurt? What were your damages? I assume that if Jane had said to you, "You know, because you're not a citizen there are some potential immigration consequences for you. Before we go any further, I want to call an immigration attorney and get his opinion of what could happen. Do I have your permission to do that?" you probably would have agreed.

I'm always concerned that criminal defendants in particular fall victim to "a little bit of knowledge is a dangerous thing." What I mean is that while it's good you're smart enough to know you're protected by privilege, and you're smart enough to recognize when that right might have been violated, you also need to be smart enough to think through the next step, and ask yourself if it was really a bad thing or whether your lawyer was really doing something to help you.

So, in this case, if your lawyer did violate privilege, how did it hurt you? If it turns out that Bob the immigration lawyer she called is your boss's brother, and now that your boss heard about this, you've lost your job, I think you might have a suit.

If nothing bad happened, then I don't think you could really win anything in a lawsuit. Maybe you could bring an ethics complaint, but you don't win anything there other than being labeled an asshole client, and the judge will know about it too (because the judge will have to assign you another lawyer) and nothing would probably happen to the public defender other than she'll be told not to do it again.

I think that if that is the situation, your best remedy might be to calmly and politely call your public defender and say, "It really upset me that you talked about my case with that other lawyer. I thought everything I told you was confidential," and hear what she has to say. If you're satisfied with her answer, hopefully she learned the importance of explaining these details to her clients and asking for permission, and you move on with your case. If you're not satisfied with her response, and you don't feel like that trust can be repaired, then tell her that you don't feel comfortable with your attorney-client relationship, and you want to know how to go about getting a new attorney.

Be forewarned, that some judges just won't care that you and your lawyer aren't getting along. Unfortunately, some defendants have used "I need a new lawyer" as a delay tactic, when in reality they're not going to get along with any lawyer, and some judges have little patience for that. I would be careful not to burn my bridge with my old lawyer before I knew whether I could get a new one.

Further, be forewarned that the new lawyer you get could very well be worse, not better, than your public defender. I know of quite a few judges who would say, "Oh yeah, you want a new lawyer? I've got just the guy for you," and a defendant would give up a very good lawyer and get assigned one of the worst lawyers in the courthouse.

So, I hope this helps, and I hope that you're able to work out your case without this interfering. I'd be interested in hearing more details of your situation if you're willing in sharing them. And I'd be interested in hearing if any of the other lawyers that read this blog have a different opinion.

3 comments:

  1. Good reply BloJu, I had a hard time figuring out what the person was asking myself.
    I personally think this guy got a result he is not happy with and is fishing for some excuse to try to nail his lawyer. And I agree that a little bit of knowledge is a dangerous thing. I like that you pointed out "think through the next step" and to think about what the harm is. I imagine this guys harm is something like "I lost" and he wants to get back.

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  2. I'd go further and say that if Jane talked to Bob without revealing names or identifying characteristics (i.e. if Bob just knows Jane has "a client" and not this particular client), then there is no problem for Jane to talk to Bob, even if Bob is not a PD.

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  3. I absolutely agree, Arvin.

    If your lawyer (Jane) "brought another attorney into the case" by asking a generic-type question without identifying info, such as, "Hey, Bob, I've got this client... he's here on a green card, this is his first arrest, and he's charged with robbery. The prosecutor is offering a simple theft charged. What do you think would happen with his immigration case if he took that?" would be absolutely ok.

    (As opposed to saying, "Hey, you know that guy Joe that works down at the gas station? Ok, he's my client, and this is what's going on..." which would be a breach of privilege/confidentiality.)

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