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Alice is charged under a criminal accusation, and counsel is appointed for Alice under the Sixth Amendment.

Alice gives written notice to Bob (the appointed counsel) that Alice will always have at least one friend or family with the objective to aid the cause of the defendant and advising the defendant (Advisor) overhearing any remote communications they may have over the phone, but will not interrupt or otherwise even announce their presence just listen, and Bob acknowledges that fact.

[EDITED]

**Alice will not disclose the name or other identifying information of the Advisor to Bob other than the general relationship of and role of Advisor to Bob, and Alice will please the Fifth if compelled to provide information any further information on Advisor.

Alice’s secondary objective is to meet her burden of proof of inadequacy of counsel which she is unable to without the audio recording.

Alice might have a similar interest protected by the First Amendment to the recording that is supported in connection with recording the police.

Under California case law, announcing to all parties that a call may or will be overheard shall be treated as if it is announced that it may or will be recorded which rebuts an objectively reasonable expectation of privacy or confidential communications and communication thereafter implies consent as well.

Does Alice have to expressly announce if she or friends or family would be recording and obtain therein the implied or an express consent due to a covenant of good faith duty — or since they don’t have a contractual relationship, and Bob acts out of a statutory right of Alice imposing in particular a duty on Bob — she does not have to do that?

Is Alice, for any of the above reasons and under the above circumstances, privileged to recording Bob without expressly announcing it to Bob and can Alice do so while evading a finding that she obviated her privileges to the confidential advice of Bob as counsel?

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  • 3
    Not an answer to your question but someone listening in obviates client-attorney privilege. Aug 31 at 17:47
  • Not necessarily, but I appreciate the input
    – kisspuska
    Sep 1 at 0:37
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    the two exceptions, in civil law, seem to be " 1) where the third party is participating to assist an attorney in understanding and interpreting complex principles, and 2) where the third party is so thoroughly integrated into the company that he or she should be treated as functionally equivalent to an employee." Listening in with no helpful role would not qualify. Sep 1 at 1:34
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Does Alice have to expressly announce if she or friends or family would be recording and obtain therein the implied or an express consent due to a covenant of good faith duty or since they don’t have a contractual relationship, and Bob acts out of a statutory right of Alice imposing in particular a duty on Bob, she has no such duty?

Alice and her counsel have some reciprocal duties. The duty of good faith and fair dealing, while in principle applicable to any contractual relationship, is not a good framework in which to analyze those duties.

It is more fruitful to consider this specialized situation as a relationship arising at law which is not predominantly contractual in character. It is an attorney-client relationship primarily, not a contractual one, particularly in the case of appointed counsel who is not voluntarily selected or paid by the client.

There are rules of professional conduct that specifically govern the allocation of responsibilities between an attorney and a client, some of which are particular to criminal defense clients and their attorneys. These rules of professional conduct would be controlling, not the duty of good faith and fair dealing.

Further, it bears noting that the proposed arrangement would result in a forfeiture of the attorney-client privilege which is not a condition that any reasonable attorney engaged in a criminal defense case would agree to allow, for the client's own good.

The main rules of professional conduct that are applicable (all U.S. jurisdictions use the same numbering system for their rules of professional conduct although not all of them are identical in content) are Rule 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), Rule 1.4 (Communications), and Rule 1.6 (Confidentiality of Information). Of these Rule 1.2 is most important. It states:

[A] lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

It also prohibits a lawyer from allowing his or her services to be used in furtherance of an ongoing crime or fraud.

Rule 1.4 provides that:

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Rule 3.1 (Meritorious Claims & Contentions), Rule 3.3 (Candor Towards The Tribunal) and Rule 3.4 (Fairness to Opposing Party & Counsel) would also often be pertinent (as this defines what communications an attorney can and cannot have with others ethically, primarily prohibiting an attorney from knowingly using false testimony or faked evidence).

There is some variation from state to state in the exact details of these rules, but the general thrust and the general scheme of organization is the same.

In a nutshell, the clients has a responsibility to determine ends, and the lawyer is charged with deciding means, although in practice, it can get more complicated than that when the ends and the means are intertwined. The main exceptions in criminal cases to this division of labor are the means involved in electing a jury trial and choosing to have the client testify as a witness.

A lawyer could reasonably insist, as a condition of ongoing representation by the lawyer of the client, that communications between lawyer and client not have someone else listening in.

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  • Is the breach of privilege because the witness could be compelled to testify or any recording could be subpoenaed or both?
    – Dale M
    Aug 31 at 23:07
  • It just felt wrong, and it is wrong to construe someone (especially a family member) overhearing a client-attorney communications necessarily as a waiver of the privilege. This is what I am finding: “Despite the general rule, there's an exception in most states: In general, when a third person is present, the attorney-client privilege continues to apply if that 3rd person is there … to aid the cause. […T]he 3rd person must be present while fulfilling a role that furthers the defendant's legal representation. The person might be…[a] relative…in an advisory role. (Updating question)
    – kisspuska
    Sep 1 at 0:37
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    @kisspuska A typical example would be a paralegal or an interpreter, not a family member who typically wouldn't fall within that analysis if the defendant is an adult.
    – ohwilleke
    Sep 1 at 4:58

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