Relationship between Defense Lawyer and Defendant

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Formation of Attorney/Client Relationship

The attorney/client relationship is formed when the defendant seeks advice or assistance from the defense lawyer; the advice sought is within the defense lawyer's professional competence; the defense lawyer agrees to render such assistance; and, it is reasonable for the defendant to believe the defense lawyer is representing him. It is important to understand when the attorney/client relationship begins because this will determine which communications are protected by the attorney/client privilege.

Defense Lawyer's Duties to Defendant

The defense lawyer is obligated to hold strictly confidential all conversations and other communications with the defendant, including all information which the defense lawyer receives from the defendant during the course of representation. The defense lawyer must pursue the representation conscientiously and without delay.

It is important for the defense lawyer to work with the defendant to develop an understanding of the defendant's legal needs and expectations, and to establish goals and deadlines that meet the defendant's needs. At all times during the representation the defense lawyer must communicate with the defendant to keep the defendant informed about the status of the case. The defense lawyer should send the defendant copies of all significant correspondence and other documents to advise the defendant of any significant developments relating to the case.

During the initial meeting with the defendant, the defense lawyer needs to fully explain to the defendant their respective roles and set out decision making responsibilities. It is the defense lawyer's job to counsel the defendant as to rights, strategy for presenting the best case and all applicable defenses. A defense lawyer's authority to make substantive decisions on behalf of the defendant may be presumed by virtue of the fact that he represents the defendant in court. In the United States the defendant has the absolute right, however, to direct the course of the case Thus, for example, if the defendant is determined to be mentally competent to stand trial, the defense lawyer must yield to the defendants' decision to plead not guilty rather than insanity or diminished capacity. Where the defendant in a death penalty case directs the defense lawyer not to introduce evidence of mitigating circumstances, the defense lawyer has no right to override the defendant's decision.

A defense lawyer may not assist any unlawful or illegal conduct and cannot counsel illegal conduct. This means the defense lawyer may not further a continuing fraud or other additional future criminal activity. If, for example, the defense attorney becomes aware that the defendant intends to commit perjury, he cannot continue his representation of the defendant. Representation of a defendant concerning past events is not viewed as assisting the defendant in committing or perpetuating a fraud.

The Attorney/Client Privilege

At the time of the initial meeting with the defendant it is imperative for the defense lawyer to explain privilege and confidentiality.


The attorney/client privilege is an evidentiary rule that protects both defense lawyers and defendants from being compelled to disclose confidential communications between them that are made for the purpose of furnishing or obtaining legal advice or assistance. The privilege is designed to foster frank, open, and uninhibited discourse between the defense lawyer and defendant so that the defendant's legal needs are competently addressed by a fully prepared defense lawyer who is cognizant of all the relevant information the defendant can provide. The attorney/client privilege may be raised at any time during criminal proceedings, pre-trial, during trial or post-trial.

Elements of the Attorney/Client Privilege The attorney/client privilege often prevents disclosure of information that would be relevant to a legal proceeding. Each of the following elements must exist for the privilege to apply:

  1. The person asserting privilege must be a client or someone attempting to establish a relationship as a client;
  2. The person with whom the client communicated must be an attorney and acting in the capacity as an attorney at the time of the communication;
  3. The communication must be between the attorney and client exclusively;
  4. The communication must be for the purpose of securing a legal opinion, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime or fraud; and
  5. The privilege must be claimed by the client. (Only the client may claim or waive the privilege.)

Scope and Application of the Attorney-Client Privilege

The five-part test is typically the starting point in a court's analysis of a claim for privilege.

  • The attorney/client privilege belongs only to the defendant and not to the defense lawyer. As a result, the defendant may prevent the defense lawyer from divulging their communications but the defense lawyer has no power to prevent the defendant from choosing to waive the privilege and testifying in court, talking to the police, or otherwise sharing confidential attorney/client information with third parties not privy to the confidential discussions. The defendant may waive the attorney/client privilege expressly by his words or implicitly by his conduct, but the court will only find that the privilege has been waived if there is a clear indication that the defendant did not take steps to keep the communications confidential. A defense lawyer's or a defendant's inadvertent disclosure of confidential information to a third party will not normally suffice to constitute waiver. If a defendant decides against waiving the privilege, the defense lawyer may then assert the privilege on behalf of the defendant to shield both the defendant and the defense lawyer from having to divulge confidential information shared during their relationship.
  • The attorney/client privilege applies only to communications between the defense lawyer and the defendant. However, the attorney/client privilege does extend beyond the immediate attorney/client relationship to include a defense lawyer's partners, associates, and office staff members (e.g., secretaries, file clerks, telephone operators, messengers, law clerks) who work with the defense lawyer in the ordinary course of their normal duties. The presence of a third party who is not a member of the defense lawyer's firm typically will defeat a claim for privilege, even it that third person is a member of the defendant's family. (In some cases, the privilege will not be waived if the third party can be shown to be reasonably necessary to aid the defendant's interests (for example, the appointed guardian for a minor)).
  • Attorney/client confidences are often described as "inviolate." However, this description is misleading. The attorney/client privilege is subject to several exceptions. In the United States, Rules of Evidence state that "the recognition of a privilege based on a confidential relationshipshould be determined on a case-by-case basis." In examining claims for privilege against objections that an exception should be made in a particular case, courts will balance the benefits to be gained by protecting the sanctity of attorney/client confidences against the probable harms caused by denying the opposing party access to potentially valuable information.
  • The crime-fraud exception is one of the oldest exceptions to the attorney/client privilege. The attorney/client privilege is ultimately designed to serve the interests of justice by insulating attorney/client communications made in furtherance of adversarial proceedings. The attorney/client privilege does not extend to communications made in connection with a defendant seeking advice on how to commit a criminal or fraudulent act; or a defendant's statement of intent to commit a crime. In nearly all jurisdictions defense lawyers can be compelled to disclose such information to a court or other investigating authorities.
  • A party seeking discovery of privileged communications based upon the crime-fraud exception must make a threshold showing that the legal advice was obtained in furtherance of the fraudulent activity and was closely related to it. The party seeking disclosure does not satisfy this burden merely by alleging that a crime or fraud has occurred and then asserting that disclosure of privileged communications might help prove the crime or fraud. There must be a specific showing that a particular document or communication was made in furtherance of the client's alleged crime or fraud.

Developing the Attorney/Client Relationship

The most neglected person in any criminal litigation is often the defendant. Defense lawyers sometimes spend so much time preparing for the case, dealing with the other counsel and the court that they often forget about building a relationship with the defendant. Typically, each case has a "critical point" where the defense lawyer urges the defendant to take his advice. The defendant will not always follow that advice because the defense lawyer has not taken the time to build a relationship at the beginning of the representation. The following are suggestions to foster the client relationship.

  • Recognize That the Defendant is Under Stress Over the Case

Be aware and understand that because the defendant is concentrating on the case, he will forget to take care of other important things. The defendant may call and say that he lost his job, got evicted, broke his leg, lost power in his house because the light bill did not get paid, is getting divorced or was in a car accident. Recognize and explain to the defendant that he may be particularly susceptible to these problems because of the stress of the case.

  • Have the Defendant Write A Brief Biography of His Life

The defendant becomes involved in the process of developing the case and gets the opportunity to tell the defense lawyer about his history. The defendant should write this while away from the defense lawyer's office and spend time gathering facts and information. The defense lawyer should read the biography and clarify any questions he might have regarding the defendant's history. It may be surprising what you will learn about your client. For example, reviewing the defendant's background may reveal he had served in the military and been awarded numerous medals and citations for heroism. This fact would be extremely important if the defendant's credibility or character is at issue during the trial.

  • Always Keep the Defendant Advised of Meetings

Defendants are happy to meet with their defense lawyers, but they need a certain connection between the meetings. If the defense lawyer plans ahead as to the next meeting, then the defendant has a next step in mind. This may seem like a minor point, but the defendant needs that "connection."

  • The Defendant Needs Information

Make it a routine practice in your office that the defendant gets copies of everything. Take the time to answer the defendant's questions.

  • Accompany the Defendant to All Case Related Meetings

No defense lawyer would consider allowing the defendant to meet with the detective investigating the case or the prosecuting attorney without the defense lawyer being present. However, defense lawyers frequently allow the defendant to see pre-sentence officers, probation officers or other court/state related personnel without being there. The defendant simply does not know how to act and does not know what to say or do, and frequently gives incorrect or incomplete information. Incomplete information can appear on the pre-sentence report to the detriment of the defendant.

  • Do Not Judge the Defendant

It is imperative that the defense lawyer avoid feelings and expressions of negativity or defensiveness that will be barriers to communication. Guard against becoming insensitive to the defendant. The defense lawyer should try to find the good in the defendant and maintain a professional demeanor in dealing with the aspects of the defendant's personality or conduct that otherwise would close off the relationship.

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