Difference between revisions of "Ethics and Professional Responsibility"

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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.
 
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
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===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.   
 
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.   
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At the time of the initial meeting with the defendant it is imperative for the defense lawyer to explain privilege and confidentiality.
 
At the time of the initial meeting with the defendant it is imperative for the defense lawyer to explain privilege and confidentiality.
  
Background
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'''Background'''
 
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.
 
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
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'''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:  
 
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:  
 
* The person asserting privilege must be a client or someone attempting to establish a relationship as a client;
 
* The person asserting privilege must be a client or someone attempting to establish a relationship as a client;
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* The privilege must be claimed by the client.  (Only the client may claim or waive the privilege.)
 
* 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
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'''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 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 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.

Revision as of 08:49, 8 April 2010