Attorney Client Privilege in Criminal Cases

Sometimes, such as capital cases, a good relationship between an attorney and client is a matter of life and death.  In many other instances, the course of the rest of a defendant’s life could be in jeopardy pending the results of a given criminal case.  Numerous legal, ethical, and professional obligations must be met by criminal defense attorneys when dealing with their clients.  Among the most commonly cited concerns from defendants regarding their attorney include matters of confidentiality, the decision making process, and how to deal with a guilty client.

Confidentiality Rights with Your Attorney in Criminal Cases

Often cited is the attorney-client privilege to confidentiality.  Any statement made by a client to their attorney cannot be revealed, whether the statement made verbally, electronically, or written.  This confidentiality agreement extends towards family members, other clients, prosecutors, and any other individual not specifically allowed privy through explicit instructions given by the client.  Regardless of whether your attorney is privately obtained or provided by the courts, the attorney-client right to confidentiality still stands.  Although an attorney cannot reveal what you may say during a conversation, virtually any other individual can.  For example, statements made by clients speaking loudly or within earshot of others to their attorney are fair game for prosecutors to subpoena for witness testimony.  The law notes that any conversation or statement revealed to their attorney with a reasonable expectation to privacy is non-admissible in the courts, however, many jails and jailors regularly monitor phones, small talk, and even loud discussions between attorneys and their clients, which all may be repeated in court by the witnessing party. 

However, judges can force attorneys to reveal information given to them by clients in the rare event a judge learns that a defendant has intentions to commit further, future crimes.  If a client makes statements portending intentions to commit future crimes, which endanger others’ well being, an attorney is ethically required to intervene through law enforcement, and if not done, can be disbarred from legal practice.  Additionally, attorney-client privilege typically only extends to verbal or written communication statements and not tangible objects, such as requesting an attorney to hold onto incriminating evidence.  Again, attorney-client privilege only pertains to the actual communications, and if requested by prosecutors, dates, times, and names of parties present at an attorney-client meeting may be revealed, as well as the costs and number of hours an attorney has worked on a given case. 

Can a Lawyer Represent a Guilty Defendant?

Yes, in fact, they are ethically bound to do so in some ways.  Granted, a private attorney can decline to represent your case, but for a public defender or court-appointed attorney, they must still offer a vigorous legal defense regardless of their personal opinion on their client’s guilt.  Even if a client confesses their guilt to an attorney, the attorney is ethically obligated to task the government with proving beyond a reasonable doubt that the defendant is guilty of a given crime.  In other instances, an attorney and client may elect to acknowledge guilt of certain crimes and go to trial seeking a more lenient sentence or defend their guilt regarding part of the charges.  Again, the attorney-client privilege exists even regarding knowledge of guilt, and attorneys must represent a guilty client to the best of their ability.

Who Is the Final Decision Maker in Client-Attorney Relationships?

Lawyers are ethically required to involve their clients in all major decisions during the course of a criminal case.  At the very least, you are required to consult with your attorney before making any of the following decisions, including:

  • Entering a plea
  • Accepting a plea bargain
  • Waiving rights to a jury trial
  • Striking or accepting jury members
  • Deciding to personally testify at trial
  • Determining what witnesses to call
  • Deciding to cross-examine prosecutor’s witnesses
  • Making trial motions
  • Introducing pieces of evidence
  • Appealing an verdict

Depending on how involved you want to be in your own defense, outline your intents before entering into an attorney-client agreement.  Additionally, remain vocal about hearing all potential ramifications to any decision, as well as all possible alternatives.  Insist your lawyer openly discuss all matters of your case, and defer the final decision making power to you whenever feasible. 

Plea Bargaining and other Fundamental Disputes

Unless otherwise illegal or unethical, an attorney will submit to the decisions made by their client. In some events, such as plea bargaining agreements, an attorney and client will not be able to agree on accepting or going to trial, which is a fundamental dispute.  Any plea bargain offered by a client, regardless of the viability of it being accepted, must be transmitted by an attorney to the prosecutor.  Additionally, any plea deal or counter proposal offered by the prosecutor must be transmitted to the defendant for approval or denial.  In the end, it will be the client’s decision that determines acceptance of a plea bargain or deciding to go to trial. 

Additionally, an attorney must accurately inform clients of all potential alternatives or negotiations that may result in a better plea deal or a favorable outcome at trial.  Clients should never immediately accept a plea deal offered from the prosecutor via their attorney without first having their attorney accurately assess all alternatives, potential consequences, and long-term future ramifications of each alternative.

Legally, an attorney so opposed to a client’s decisions or behavior may request that the presiding judge remove them from counsel.  This must be approved by the judge, for both private and public counsel.  Additionally, some clients can no longer afford to pay legal fees during a given criminal case and fear their attorney will withdraw themselves from the case.  Depending on certain state laws, attorneys can ethically ask a judge to remove themselves from a case due to non-payment causing financial hardship for the lawyer.  However, a judge will most likely not allow attorneys to remove themselves from a case:

  • Immediately before a trial or other integral decision making phase
  • In the event hiring a new attorney would be detrimental to the client
  • In the event a client has already exhausted their funds due to significant payment to a given attorney
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