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In many legal conflicts the fact that a defendant acted on the advice of competent legal counsel is considered an affirmative defense, or at least a mitigating factor.

Can such a defendant hide behind attorney-client privilege to lie about advice his attorney provided? I.e., does an attorney have an obligation to object to such a lie if made aware of it (even though that would amount to accusing his client of perjury)? Or, can an attorney be put under oath and compelled to testify against his client in such an event?

Clarification: This is not pertaining to a situation in which the Client is antagonizing the Attorney. Suppose, rather, that the Client at some point asked of the Attorney, "Give me your professional advice on X." The Attorney responds with, "My advice is Y." The Client instead does Z, gets into legal trouble, and in his defense claims, "My Attorney advised in scenario X to do Z."

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    Client waved privilege by disclosing first. No more needed analysis. Lawyer can reveal the exact nature of the conversation for which the client waived privilege. Any other conversations are still privileged. – Viktor Oct 2 '15 at 22:35
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It's no fantastic legal source, and rules may vary in different countries, but from the Wikipedia article on Attorney client privilege:

Lawyers may also breach the duty where they are defending themselves against disciplinary or legal proceedings. A client who initiates proceedings against a lawyer effectively waives rights to confidentiality. This is justified on grounds of procedural fairness—a lawyer unable to reveal information relating to the retainer would be unable to defend themselves against such action.

In other words, if the client's lie is related to one of the lawyer's interests (for example, if the client sues the attorney for malpractice based on the advice he was given), the lawyer can break privilege on his own behalf, thus testifying that his client lied.

As to the specific case you brought up, I would say that privilege wouldn't protect the client from the lawyer discussing things never brought up. In other words, we could force the attorney to testify, since one of two things is true:

  1. The attorney really did give him that advice, in which case the client has already voluntarily given up his right to confidentiality by describing what was said between them, or
  2. The lawyer never gave him that advice, and privilege wouldn't protect a conversation between the two that never transpired.
  • Sorry, I just added a clarification to the question to make it clear that the lawyer's interests are not being directly attacked, and that there was a conversation on the question. – feetwet May 26 '15 at 21:51
  • A conversation on the question (to me anyway) doesn't seem to be enough. For example, if I pay the fee for a two minute consultation with an especially expensive lawyer, and ask him if I can commit a particular act, he says no, and then when tried for that act I lie and say he said it was legal. It seems like we should be able to hear the lawyer's testimony on whether or not he gave that advice, especially since the client opened the door by discussing what transpired in the first place – Roy May 26 '15 at 21:56
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Model Rule 1.6(b)(5)

A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary... to respond to allegations in any proceeding concerning the lawyer's representation of the client.

and Comment 10, in part:

Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense.

  • Are the comments to the rules available publicly? And are the rules intentionally getting vague here? Or are they only vague if I further assert in my hypothetical that the false "advice" Z does not impugn the lawyer? Or is such an assertion implausible, because any lawyer who says Y would find the assertion that he said anything but Y to be an attack on his competence? – feetwet Oct 2 '15 at 20:45
  • @feetwet there is a link to the comment at the bottom of the page. If the lawyer is not impugned why would he need to speak up? – jqning Oct 2 '15 at 21:35
  • The question is whether the lawyer could be required to speak against his client. E.g., client is in court or administrative hearings and says, "My defense is that my attorney said Z." Z isn't implausible, but questionable enough that the opposition would like to confirm he said Z. Would they even entertain the idea of questioning the attorney? And if they did, would he just say, "You know I can't answer that due to privilege?" Or, under Rule 1.6(b)(5) would he not only answer, but be professionally compelled to speak up if he heard the client make that assertion in a proceeding? – feetwet Oct 2 '15 at 22:00
  • @feetwet well now I need to see the rule in context that relying on advice of an attorney is a defense or mitigating circumstance. – jqning Oct 2 '15 at 22:48
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Yes, Attorney Client Privilege remains, even if the client lied. Though other replies here point out creases in that rule.

Having said that: Any reasonable Atty would resign when aware of client lies, or intent to lie under oath. Often, when you see stories of Atty's saying they can't represent a client, it's because they've become aware of lies, or intent to lie.

Side note: even if client lied, the client cannot be prosecuted for that lie, because statements to an Atty are not under oath.

This very current case brings this to mind: client parties lied, attorney removes. A side story came up WRT and many say the client cannot be prosecuted for lying to Atty.. because it is not under oath.

  • Wow, that is confusing: The lawyer for a woman accusing a man of sexual assault not only "abruptly quit the case" but even called a hasty press conference to publicly declare, "I can only say that I don't know what's true and what's not true. I received the storyline from the mother. And it's my position that I'm not comfortable with that version of the events." I wonder how that comports with his professional obligations? – feetwet Oct 2 '15 at 22:38

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