Criminal Justice Section
Criminal Justice Magazine
Volume 18 Issue 1
Criminal Justice Matters
J. Vincent Aprile II
J. Vincent Aprile II is a senior capital litigator with the Department of Public Advocacy in Frankfort, Kentucky, where he has been a state public defender for 28 years and served as the agency’s general counsel for 17 years (1982–1999.) He is also a contributing editor to Criminal Justice magazine and a current member and former chair of its editorial board.
Legally Blonde : Ethically Bold
In last summer’s comedy film, Legally Blonde, Reese Witherspoon’s protagonist, Elle Woods, is a Harvard law student who, as an intern at her professor’s prestigious law firm, becomes part of the defense team in a celebrated murder trial. This film, described by Roger Ebert of the Chicago Sun-Times as "a featherweight comedy balanced between silliness and charm," nevertheless raises a heavyweight ethical issue that has frequently challenged litigators, particularly members of criminal defense teams.
Although the client, a well-known fitness guru charged with murdering her elderly husband, willingly admits to her defense lawyers that she has an alibi, she vehemently refuses to disclose the circumstances of that alibi. Later, the client, after bonding with Woods during a solo visit at the jail, tells her the actual alibi. The client attaches only one condition to the disclosure—the intern may share the information with no one, including the other members of the defense team. When Woods informs her professor, the lead attorney in the murder case, that she must honor the client’s request, she is ordered to share the information with the defense team. Although Woods declines, emphasizing her promise to a fellow sorority sister rather than adherence to legal ethics, she is allowed to remain on the defense team and strongly encouraged to reconsider her decision to keep the client’s secret.
In an insightful, but low-key vignette in Legally Blonde, Woods’ colleagues bombard her with the classic exhortations for breaching the client’s confidence in this situation: (1) "Are you crazy, just tell him [the lead attorney] the alibi"; (2) "We are going to lose this case, if you don’t"; (3) "If you tell him, he’ll probably hire you as a summer associate"; (4) "Who cares about [the client], think about yourself"; and (5) "Who cares" that you gave the client your word. Follow the lead counsel’s orders regardless, don’t sabotage the case, place self-interest above everything, don’t factor in the client’s wants, and don’t hesitate to break a promise to the client are all values that find little favor in a lawyer’s code of ethics.
The issue is whether a member of the litigation team, a lawyer or a nonlawyer, is ethically and legally entitled or required to keep from the other members of the team, particularly lead counsel, information provided by the client when the disclosure was made on the condition that the team member not share it with anyone. This ethical predicament arises more often than might be expected for defense teams in criminal cases.
It is axiomatic that a criminal defendant has no obligation, despite the guarantees of ethical confidentiality and legal privilege, to confide in anyone on the defense team anything about his or her involvement in the charged offense or a basis for the exoneration. Equally well established is the ethical principle that the lawyer may not disclose any information provided by the client without the client’s consent. (ABA Model Rules of Professional Conduct, Rule 1.6.) What complicates the scenario in Legally Blonde and comparable situations is the apparently hybrid nature of the client’s election. The client opts both to reveal information (to one member of the team) and to keep it secret (from the remaining team members).
Some lawyers, particularly those who normally function as lead counsel or first chair such as Woods’ professor, contend that no member of the defense team has the authority to decide to keep information received from the client secret from the other team members or, at the minimum, the lead litigator. Thus, by classifying other team members as subordinates or agents of the lead counsel, proponents of this view conclude that there can be no secrets between members of the litigation unit. This analysis neglects the reality that the client, not the lead attorney, controls whether ethical confidentiality and attorney-client privilege will be asserted or waived. This argument for total team disclosure is predicated on the erroneous assumptions that the recipient of the confidential information has a right, co-equal with the client, to waive, at least to a limited degree, ethical confidentiality and the authority to disregard the client’s directive.
Another purported justification for full team disclosure is the concept of partial waiver of confidentiality by the client. Having elected to share a confidence with one member of the defense team, the client would be precluded, according to this argument, from asserting ethical or legal privilege to block the team member from sharing that information with some or all of the team. Such an approach would place the defense team at odds with the desires and directions of the client. The lawyer’s assertion or waiver of ethical confidentiality or legal privilege may only be made on behalf of the client and never against the client. As a result, the claim of partial waiver or even internal waiver within the defense team is without merit.
Furthermore, the concept of full team disclosure would allow a member of the defense to learn the client’s secret under false pretenses. Certainly no member of the defense team, from nonlawyer to lead counsel, may ethically lie to the client about the limitations to be placed on confidential information provided by the client. The team member may not falsely promise to keep the client’s confidence as a strategy to secure the information. Similarly, no member of the defense could ethically breach a condition of confidentiality imposed by the client and accepted by the team member prior to the client’s revelation of the information, even at the direction of lead counsel. (ABA Model Rules of Professional Conduct, Rules 5.2(a) and 5.3.) The defense team owes the client loyalty, candor, and sufficient explanation to ensure an informed decision on the matter of limited disclosure. (ABA Model Rules of Professional Conduct, Rule 1.4.)
Some lawyers attempt to solve this problem by imposing certain rules on the client and the team members concerning the transfer of confidential information. This can result in a defense " Miranda warning" whereby the client is advised by counsel that no team member can receive any information from the client unless the member is free to share it with either the entire team or, at the minimum, head counsel. Such a tactic has numerous disadvantages. This warning stifles client disclosure and unethically limits the client’s options.
Although lawyers have the ethical right to limit the objectives of the representation if the client consents after consultation, those objectives may not be limited in a way that diminishes the lawyer’s other professional obligations, including confidentiality. (ABA Model Rules of Professional Conduct, Rule 1.2(c).) Assuming arguendo that this Miranda-type warning could be construed as an "objective of representation," this approach would be unethical if it is imposed unilaterally by defense counsel, i.e., without the client’s consent. But, even if the client consented after consultation, this team disclosure rule would be ethically improper because it would allow the lawyer to reduce the client’s elections provided under client confidentiality.
Certainly nothing in legal ethics prevents a lawyer from explaining to the client that normally any information the client provides to a member of the defense will be shared with all team members, at least on the basis of each member’s need to know that data. That, however, is a far cry from the defense- Miranda warning that precludes any limited disclosure by the client to a single defense team member.
If given the choice that clients will either keep certain information to themselves or reveal it to but one defense member on the condition of no team disclosure, litigators should in most instances want one person on the team with that knowledge. With knowledge of the client’s secret, that one team member can conduct an ongoing evaluation of the confidence and its impact on the case. The recipient of the confidence is ideally situated to advise the client about the benefit to the case if the client will allow the information to be shared by the entire defense team or, at the minimum, with lead counsel.
Although probably spoken with pseudo-sincerity, Elle Woods’ professor and lead counsel eventually commends her for "gaining the client’s trust and keeping it" by refusing to reveal the alibi to the litigation team. Yet this is an important aspect of a team member honoring the client’s request for limited disclosure. By obtaining the client’s trust and then demonstrating the trust was well placed, that team member will have an extremely influential position with the client on the matter of team disclosure and probably other issues in the case.
Of course, lawyers who fear this type of limited disclosure can take a variety of steps to prevent it from happening on their watch. Lead counsel can limit face-to-face access to the client to lead counsel and those team members who accompany him or her to such meetings. Individual members of the team, when alone with the client, can refuse to share the client’s confidence when the client requires no disclosure to anyone else. But in reality none of these prophylactic measures can ensure that a client will not blurt out such a confidence in a private meeting or send the secret to an individual team member by an agent, such as a family member, or by mail, with all the strings attached. When that happens, the defense team will still have to wrestle with these ethical questions.
The individual recipient of the client’s secret, whether lawyer or nonlawyer, must also realize that the exceptions to ethical confidentiality, such as disclosure to prevent a criminal act or fraud on the court, may require that the confidence be revealed, at least initially, to lead counsel or the entire team to preclude illegal or unethical actions from occurring.
A number of years ago an associate who was a member of a defense team in a death case called for ethical advice in a situation comparable to the one confronting Elle Woods. She was firmly of the opinion that what had been revealed solely to her was of no consequence to the client’s case and had so informed her first chair. She, too, feared that refusing to disclose the client’s confidence could result in her firing, but, although openly seeking advice, felt that she could only share the secret if the client consented. The lead counsel, her employer, considered disclosure to other members of the team a no-brainer and seemed bent on forcing the associate to reveal all. Whether that associate was "legally blonde" was never considered or known, but that she was ethically bold and correct, just like Elle Woods, is a certainty.