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Related: Is a lawyer allowed to stop representing his client?

In the event that a lawyer stops representing the client, and the client openly has told the lawyer that they have committed a crime, would it be legal for the lawyer to testify against them?

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  • What do you mean when you say openly told the lawyer about committing a crime? I'm guessing you're talking about freely admitting it, but not doing it in the open, i.e., where other people can hear the confession. – bdb484 Oct 10 '20 at 18:27
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    Also, what jurisdiction is this? Privilege rules vary from one place to the next. – bdb484 Oct 10 '20 at 18:27
  • I'll say NYC laws for jurisdiction (at least that what I think you mean by jurisdiction). And your assumption is correct. – yolo Oct 11 '20 at 18:01
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Generally speaking, lawyer's testimony would be stricken or inadmissible if (1) the client's disclosure happened in the context of (i.e., during) the attorney-client relation between them, and (2) the client does not waive the attorney-client privilege pursuant to that relation. In other words, the testimony a lawyer might provide is not to "infringe" the attorney-client privilege.

For the communications at issue, the requisite context or character of attorney-client relation is palpable from case law and primarily statutory law. For instance, section 4503 of [NY] Civil Practice Law & Rules is in terms of "communication made between the attorney [...] and the client in the course of professional employment" (emphasis added). Similarly, State v. Usrey, 212 P.3d 279 (2009) ("any communication made by the client to him or his advice given to the client in the course of professional employment", emphasis added). See also Rhone-Poulenc Inc. v. Home Indem Co., 32 F.3d 851, 862 (1994) ("in connection with this communication is acting as a lawyer").

Note that the matter does not whatsoever depend on whether the attorney-client relation subsists at the time the lawyer's testimony is sought. If communications pursuant to the attorney-client privilege lost protection once the relation breaks, defeating the privilege would be a matter of persuading, bribing, or ordering a lawyer to stop representing his current client(s).

Examples where courts ruled that the client's disclosure does not pertain to the lawyer's attorney capacity or that the client implicitly waived the privilege are Purdue University v. Wartell, 5 N.E.3d 797 (2014) and Waterfield v. Waterfield 61 N.E.3d 314 (2016), respectively. In such instances, the lawyer's testimony (be it part thereof or in its entirety, accordingly) would constitute admissible evidence.

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    @bdb484 "reach the wrong conclusion (as this one did)". You still fail to articulate what exactly you believe is wrong and why. If communications pursuant to the attorney-client privilege lost protection once the relation breaks, defeating the privilege would be a matter of persuading/ordering a lawyer to stop representing any current client(s). Hence the references to "any communication made by the client to him or his advice given to the client in the course of professional employment", State v. Usrey, 212 P.3d 279 (2009). – Iñaki Viggers Oct 11 '20 at 20:48
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    @yolo The NY statutory equivalent of the citation of Usrey in my previous comment is here. Note that, as in Usrey, the NY provision is in terms of "communication made between the attorney [...] and the client in the course of professional employment", i.e., not premised on whether the relation subsists at the time the lawyer's testimony is sought. This matter is largely uniform among jurisdictions in the US. – Iñaki Viggers Oct 11 '20 at 22:25
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    @IñakiViggers your last two comments contain very helpful and relevant information I'd recommend editing into the answer itself. – feetwet Oct 14 '20 at 16:40
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    A statement from a client to a lawyer that the client committed a crime, such as the one in the question, would always fall under the ordinary attorney-client confidential communications privilege which is absolute, and not under the attorney work product privilege which has an interests of justice exception. – ohwilleke Oct 15 '20 at 1:14
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    ' @IñakiViggers There is absolutely not an "interests of justice" exception to the ordinary attorney-client confidential communications privilege, only to the work product privilege. The attorney-client privilege is frequently invoked in a way that impairs interests of justice. The reference to compulsion addresses cases where a court order is erroneous and reversed on appeal. – ohwilleke Oct 15 '20 at 18:37
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In the event that a lawyer stops representing the client, and the client openly has told the lawyer that they have committed a crime, would it be legal for the lawyer to testify against them?

Generally, no. The attorney-client privilege survives the termination of the attorney-client relationship. So, the lawyer cannot testify against the client.

There are exceptions to the general rule. The two most important ones are as follows:

  1. There is a crime-fraud exception to the attorney-client privilege that applies when someone uses an attorney's services for the purposes of carrying out a crime and the attorney is a knowing or unwitting co-conspirator.

For example, if the crime the client confesses to is to defrauding investors in a securities prospectus that the client has the lawyer draft for the client containing false information about the company and then tells the lawyer after it has been sent to investors who put lots of money into the company that the statements the client told the lawyer to put in the prospectus were intentional lies made for the purpose of defrauding the investors.

  1. An attorney is entitled to testify if the client effectively waives the privilege in the context of disputed issues between an attorney and a client such as a malpractice lawsuit or an ethics complaint lodged against a lawyer where the lawyer's testimony concerning the privileged communications is necessary to defend the lawyer.

For example, if the client sues the attorney for malpractice for refusing to present a key witness at trial causing the client to lose the case, the attorney can defend himself or herself by stating that the attorney knew that the witnesses testimony would have been false because the client told him "X".

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