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Turning on your client: When ethics mandates recusal

As a defense attorney, your relationships with your clients are paramount. Your loyalty to your clients is unwavering and you would never dream of doing or saying anything to jeopardize any of their cases. But then along comes the one you never expected. While arraigning a client on a domestic violence charge, your client leans over and whispers to you not to worry about his wife (the victim) showing up for trial because he plans to "take care of her" after the hearing. What do you do?

When your client threatens to kill you or someone else

Unfortunately, this type of thing happens. In United States v. Alexander, (9th Cir. 2002) 287 F.3d 811, defendant Alexander was represented by appointed Federal Defender Mark Werner on fraud charges. During the course of the representation, Alexander made various threats to kill other people to Werner, and also threatened to harm Werner (Id. at 815.) He told Werner, "I have no problem coming in and killing half a dozen people, and taking them out, and I would testify to that in court." Alexander also told Werner during a phone conversation that "he has only one wish, and that wish is to kill. To not only kill, but also to watch people being tortured before he kills them." (Id.) Werner reported Alexander's threats and later moved to withdraw as his attorney. (Id.)

Werner was subpoenaed by the grand jury and ordered to bring his files. He asserted the attorney-client privilege. He was ordered to testify to Alexander's threats, but instructed not to reveal any other protected communications. (Id.)

Alexander was convicted of some of the threats charged and sought reversal on grounds that Werner's grand jury and trial testimony and production of his files violated his Sixth Amendment right to counsel and his attorney-client privilege. (Id. at 816.)

The court restated the principle that attorney-client communications are protected only when made "in order to obtain legal advice." (Id. [quoting United States v. Bauer (9th Cir. 1997) 132 F.3d 504, 507].) Alexander's threats did not fall under this category. (Id.) Further, the attorney-client privilege "does not extend to attorney-client communications which solicit or offer advice for the commission of a crime or fraud." (Id. [quoting In re Grand Jury Investigation (9th Cir. 1992) 974 F.2d 1068, 1071].)

In the instant case, Werner appropriately asserted the attorney-client privilege when called before the grand jury and only testified in the district court regarding the threats under court order. (Id. at 817.) Werner redacted his files omitting all information not related to Alexander's threats. (Id.) Further, Werner's grand jury testimony was not in a capacity as Alexander's attorney, but as a witness to a crime. (Id.) Werner's testimony about Alexander's threats to commit future crimes were not protected by the attorney-client privilege and was not in violation of Alexander's Sixth Amendment right to counsel on the fraud charges. (Id.)

The interplay between California Evidence Code 956.5 And BP 6068(e)

In People v. Dang (2001, 2nd Dist.) 93 Cal.App.4th 1293, the defendant told his attorney before trial that he was going to "pay off" witnesses and if he was not successful he would "whack" them. (Id. at 1295.) In another conversation, the defendant threatened his own attorney. (Id. at 1297.) The attorney disclosed this information to the prosecutor and was relieved from the case. (Id. at 1295.) In appealing his subsequent conviction for domestic violence related charges as well as dissuading witnesses, the defendant argued that his former attorney's testimony at trial violated that attorney-client privilege. (Id. at 1296.)

California Evidence Code Section 956.5 states that: "There is no privilege under this article if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm" (Id. at 1296.) The Dang court concluded that the attorney's testimony about defendant's threats was properly introduced under this section. (Id. at 1298.)

Business and Professions Code Section 6068(e) states that it is a duty of an attorney to: "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." (Id.) The Dang court recognized the apparent conflict between this section and EC 956.5, but declined to resolve it, because the issue before them was merely the admissibility of the attorney's testimony. (Id.) However, the court noted that the State Bar Court has held that BP 6068(e)'s duty of confidentiality is modified by the Evidence Code's exceptions to the attorney-client privilege. (Id. at 1299 [citing Fox Searchlight Pictures Inc. v. Paladino (2001) 89 Cal.App.4th 294, 314; see also General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1191].) Further, the court stated that "[i]f the Legislature had wished to exclude admissibility of an attorney's testimony against a former client in this context, it could have done so by providing in section 956.5 that the attorney could report the threat to authorities, but could not testify against the client in a trial. Instead, the Legislature did not qualify the provision." (Id. [italics in original].)

The moral of the story is that as a defense attorney you may come across a case where you are faced with conflicting duties. A working knowledge of these rules is essential to allow you to weigh your options under your particular facts, and to make the right decision.

Patrick, Esq., is a deputy district attorney in the Special Operations Division of the San Diego District Attorney's Office. She can be contacted at wendy.patrick@sddt.com.

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