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.

"In dealing with extremists, one must empower the people."

Some people might laugh when I mention that I get my news from Glamour magazine. Not all of it, of course, but some of it.

But it was literally just yesterday that I was paging through Glamour while blow-drying my hair, and read an interview with Pakistan's former Prime Minister, Benazir Bhutto.

At least when I heard the news that she had been killed I knew who she was, and what she stood for.

You can read the interview here: A Talk With The World Power

More "National Enquirer," Less "People Magazine"

My mother is so gullible...

She's been away and hasn't really seen any news. So, when she called tonight, I gave her a few of the headlines she had missed. I told her who had won Survivor... I told her that Britney's little sister is pregnant...

"No!" She couldn't believe it.

"She's only 16." My mother said again, "I can't believe it."

"Yeah," I told her, "And the baby's father is one of Britney's sons."

And I could hear her just processing the whole thing. "The baby's father... is... Britney's son..."

And then she just couldn't stop saying "Oh my god." As in "Oh my god, I didn't realize her kids were that old." "Oh my god, well, that's just... oh my god."

Ha ha. I love tricking my mother. I just keep picturing her striking up conversation with people on her trip. "Did you hear about Britney's little sister?" And they'll be nonchalant about it... and she'll think they condone teen sex with infant nephews! Ha! It's just too funny.

Christmas Buying Guide

There are a lot of blogs that feature holiday gift guides. They scouring the internet for great finds, and categorize them as "great gifts for your boss," or "for your roommate that you secretly don't really like" and "for the guy you just started dating, and you're not sure if it's going anywhere, and you're not sure if it's even worth it to get him a gift, but maybe you should have something on hand, in case he gives you something and you want to avoid an awkward moment..."

But I think they're all overlooking what is going to be one of the hottest gifts on everybody's wish list this year. I know it's on mine...

The book is called The 2007-2012 World Outlook for Bathroom Soap Dishes by Philip M. Parker.



It's only $795 and you can learn about soap dishes from around the world. For the next five years.

And it's paperback. So, it's portable. And, it's only 187 pages. So, it's a quick read.

And, that comes to only about $4.25 per page to learn about soap dishes from around the world. And five years into the future.

It's practically like buying a time machine. That can only bring you into the next five years. And only to look at soap dishes.

What more could you ask for?

(I seriously wonder if this could maybe be code for something. You know, like "I have the perfect cover business for our cocaine sales. We'll sell it as a book about... I don't know... soap dishes. No one would buy that. So, next time you want another $800 of cocaine, you just order that book of Target.com.")

Don't forget to check out some of Phil's other publications...

The 2007-2012 World Outlook for Sailboats More Than 9.0 M (29.53 Ft) and Less Than 12.0 M (39.03 Ft) in Length with Auxiliary Motor Excluding Military and Commercial Sailboats, only $795 at amazon.com,

or


The 2007-2012 World Outlook for Glace, Candied, and Crystallized Fruits, Fruit Peels, Nuts, Marshmallow Cream, Cough Drops Excluding Pharmaceutical Type, and Other Confectionery-Type Products (Paperback)
, also $795.

Or, for a real bargain, check out The 2007 Import and Export Market for Wine Made from Fresh Grapes or Grape Must in Poland for only $96, and only $2 used. (Who are these people? I actually considered buying the $2 used copy just to see if I could glean from it who the previous owner was, or why it was purchased in the first place.)

In summary, Santa, I'd like one of Philip M. Parker's bestsellers, or Elmo TMX eXtra Special Edition. Even though I can never figure out what he's saying.

Brown Alert

The new job means going to new jails. One jail is literally so new that it doesn't even smell like jail yet. If you've ever been to a jail, you know exactly what smell I'm talking about.

Anyway, so I went to a new jail-processing unit today. I'll try to explain the layout. First, there's glass doors that you walk through to come in from the parking lot. There is a fairly large foyer area there. (With some family members standing around waiting for someone to be released, or recently released men waiting for a ride home.) Then there's a glass-windowed guard booth. And then there's a heavy steel door for when they let you in. But the guard booth kind of spans both areas, so they can see and speak to the people who have just come through the front doors, and the people who have already come through the steel door.

So, I got in through the steel door, but the guards held me there a while before I could progress into the jail, because they had to process my ID and take my picture.

While I stood there, I could hear all sorts of things coming and going. An officer came in with a K9 unit, a different officer came in and informed the guard at the desk that a class would be coming in for a tour, another officer came and told the guard that he was expecting some additional prisoners from another jurisdiction. All of this happened on the other side of the steel door, and I could only vaguely hear what was going on, mostly only by hearing the guard's side of the conversation (and not seeing any of it).

Finally, I saw the guard pick up the telephone/intercom microphone and shout "BROWN ALERT! BROWN ALERT! I REPEAT BROWN ALERT!"

I was so curious about what could be happening on the other side of the steel door. Had someone escaped? Was someone injured? What could be going on? I wanted to ask the guard, but it seemed like everything was in such a panic mode that I might somehow be interfering.

Also, I had once gotten stuck in a lockdown in a scary stinky county jail for about two hours when I was a public defender, so I was a little worried about that. It's a lot like being stuck in a really stinky elevator.

Then the guard picked up the phone again, and again over the intercom he shouted "BROWN ALERT, BROWN ALERT! REPEAT, BROWN ALERT!"

Lots of other officers and guards ran though the secure area, everyone was excited and shouting. (Mostly shouting "Brown Alert! Brown Alert!" as they ran out or ran past.) So, finally, I asked one of the guards, "What is a brown alert?"

And the guard replied, as he ran out the door, "It means the coffee truck is out in the parking lot! C'mon, let's go!"

Seriously, at least they exhibited a good response time. And they're well-caffeinated so they'll have their energy in case of an escape or a fight.

Cotton Balls

Old School was on TBS this weekend. They had to clean up the language a little bit for basic cable.

The funniest part was when the one guy tried to demonstrate "earmuffs." (You say "earmuffs," the kid in the room covers his ears, and then it's safe to say "bad words" in front of the kid.)

But there weren't any bad words. So they said "earmuffs" and then said "witch," "darn," and "cotton balls."

Cotton balls.

ABA Journal Blawg 100

It's hard to campaign in an election that you don't even know you're in. Good thing I just found out about this: The ABA Journal Blawg 100.

So, vote for Blonde Justice in the "Crime Time" category! I know there's little chance of me catching up with the big guys, but, as always, it's all about the underdog.