Super-long fact pattern with rather generic question, only read if you are ok to find that the question may not even really be answered very helpfully. Please be patient, thanks!


This "hypothetical" probably would fare better as a reddit post, but let's see.

In California, Bob is appointed counsel in a misdemeanor criminal accusation ensued proceeding who hires an investigator.

Investigator talks with Bob, and Bob discloses inference not public from information also not public to Investigator which provided for a defense. The defense substantiates more-likely-than-not that Alice, the accuser knowingly or with reckless disregard to the falsity of their statement made a false statement material to the false allegations she makes.

Investigator discloses the client-attorney privileged information, the defense to Alice who would be reasonably expected to be called to the stand to make a statement in support of the false accusation should the matter reach jury-trial phase.

Bob brings the matter to the attention of Appointed Counsel, who doubles down on the decision to disclose privileged and confidential information of Bob by which forfeiting a meritorious defense in the case.

Under the 9th Circuit's standards, Bob, if with good cause, refuse to speak with Appointed Counsel, the latter must be removed or substituted. Bob for the breach of privilege, refuses to speak with Appointed Counsel and in any occasion either does not engage or in a civil manner advises Counsel that Bob will not communicate.

Appointed Counsel in fear of getting fired for the complete breakdown of the client-attorney relationship threatens Bob that unless he is willing to demonstrate communication before the court so as not to be fired, he would state a declaration of doubt relative to Bob's competence to stand trial. Should such a maneuver succeed, Bob's refusal to speak would no longer be considered as a basis for mandatory removal of counsel with a conflicting interest or a manifest division of loyalty resulting in prejudice or the actual forfeiture or withdrawal of an affirmative defense potentially meriting no less than substantial possibility of actual innocence or a reasonable doubt as to the alleged guilt — and Counsel could not be removed, fired or substituted regardless of any concerns made by Bob.

As a matter of law: If Counsel has reason based in evidence, that is, if Counsel can support by any theory explaining anything independent from their own conjecture, surmise or imagination that Bob is not competent to stand trial, per U.S. Supreme Court case law (and simple common sense!) must declare such a doubt, and has no discretion not to, has no duty to discuss such doubt of competence with the client prior declaring such doubt before the court.

Whether or not Counsel truly held a belief of Bob's incompetence is irrelevant in that hypothecating the delivery of the potential defense Bob is entitled to upon whether or not Bob is willing to falsely demonstrate communication between him and Counsel means that Counsel either threatened to deprive Bob of a defense Counsel believed to be potentially meritorious or that Counsel did not believe and threatened to deprive Bob of the basic and fundamental rights of strategic decisions of the case (for e.g., speedy trial, self-representation, deciding over appeals, deciding to make any statements on the stand etc.).

From New York to California, for the purposes of extortion statutes, the term "property" (both such threatened to be harmed in a threat constituting extortion and such demanded for any extortive threats) include intangible privileges and prepgatives: For e.g. the right to appeal, the right to a PIN-code or the right to file an administrative protest are each enumerated examples of "property" which may be subject of an extortionist's demand.

Under the law, the threat of Counsel to either falsely impute to Bob the deformity of mental incompetence was a threat to damage his basic, fundamental defendant rights to which he has a property interest while Counsel demanded that Bob forfeit his right to refuse to speak with them for good cause (and thereby the right to remove and substitute Counsel, the right to effective assistance of counsel, the right to a meaningful adversarial testing of the case, the right to due process and finally a right to just outcome each in a meaningful time etc.) or it was a threat the Counsel would not present the potentially meritorious defense of Bob's alleged incompetence unless Bob first demonstrates to the court that he is willing to talk with Counsel (should Bob truly be incompetent and Counsel believed that, it would be quite outrageous to hypothecate such defense to first expecting alleged incompetent Bob to act with rationale, and follow his instructions).

Either way, Counsel engages in criminal extortion. Bob does not bend, refuses to speak with Counsel, and Counsel fails to raise his alleged concern or doubt on multiple occasions the cases is called hence knew or had reason to know and an ordinarily prudent attorney would have known that they had a prior belief of incompetence and their legal duty to declare such belief before the court. More than a month passes between the two hearings, and Counsel doubles down on the threat in writing in email (also affecting interstate commerce in that the email used servers out of state and therefore potentially violating federal extortion statutes too).

It is clear and convincing that Counsel was merely trying to strong arm Bob into submission, and compel Bob into creating false evidence of the actually inexistent client-attorney cooperation before the court.

Bob files for conflicted Counsel proceedings 5 weeks after the first threat, less than a day later Counsel conveniently declares a doubt into the competency of Bob. Over 2 years after having been representing Bob, and over 100 days not feeling the need to make such a declaration.

Thereafter Bob amends the motion and provides documentary evidence (lawfully recorded audio evidence of the threat made by Counsel) of the extortion. Per California Constitution, Bob, the victim of extortion, must be protected from being contacted by the perpetrator of the crime, extortionist Counsel yet, the court disregards both the brake of privilege as well as the victimization each giving a right under the law to Bob to refuse to speak with Counsel, and the court refuses to remove him.

The judicial officer had direct knowledge of the content of the documentary evidence, and was offered in camera to listen to the audio recording, but upon the heavy objection of Counsel, the JO denied permission to Bob to present evidence (also in violation of well-settled conflicted counsel proceeding case laws).

Bob had been previously found competent by the same court sufficient for it to permit, in fact, force Bob into self-representation. Furthermore, Bob was not raised any concerns by 3 prior counsels each fired in conflicted counsel proceedings previously which is a fact pattern that based a previous case where the court was found not having a duty to initiate a competency proceeding.

The court disregarded all these facts, and ordered competency proceedings.

The facts of the case itself are such that the average Joe forensic psychologist will simply not know whether or not Bob is actually entitled to 1) not speaking with Counsel and therefore more likely than not, not having a duty imposed on him to "reasonably assist [Counsel] in [Bob's] defense", 2) that the "nature" of the proceeding by a growing number of lawyers is "malicious", and not "criminal" or that 3) that the status of Bob is rather of a "persecutee" for being uncooperative at best and for any other ulterior motives at worse rather than of a "defendant" etc. Matters each requiring to be inquired into by the appointed forensic expert, and Bob will either have to lie what the expert 99% of the time hears from competent defendants or get down rabbit holes the non-lawyer psychologist will simply find a basis for declaring Bob incompetent.

The only legal safeguard for one not to be found incompetent while is is that the court must appoint a second expert. But if the court already has exposure in that the JO refused to hear evidence in a closed setting of serious moral turpitude of its own "officer" Counsel, what good is that?

In these proceedings, normally, defense interest is to obtain a finding of incompetence and thereby a non-guilty by reasons of insanity, and the prosecutions interest is to obtain a finding of competence. So the law allows that the prosecution gets one expert (expectably leaning on the competent narrative), and defense Counsel one to the contrary.

In Bob's case, the prosecution fails to even ask for a secondary opinion, or when Bob in pro per raises the issue of not seeking such defense and therefore being entitled to two opinions, the prosecution still fails to try to get its own expert that would support their narrative.

The experts are appointed by the court who already has exposure in this nasty prosecution. Counsel wins.

So, what legal safe guards are present in a situation like this?

If a Bob person can effectively operate as a monkey wrench merely reading the law in the face of the JO, Counsel and the prosecution, and forcing their hands to properly conducting the case which instead of getting them each back on the straight and narrow simply pushes them to double down on everything.

What legal safe guards are present to actually receive the protections conveyed constitution and by common law to a fair trial if whenever you don't let them cut corners, and just overlook bull sh— they will simply break more laws until they win? And a Bob person either accepts his faith, and finally learns to shut the f— up, and smile to malicious prosecution or keeps pushing, and if they can't otherwise lock him up, they will lock him up at least in a state facility.

Of course, all this is hypothetical because typically people not earning a lot will have a sh—y public pretender, and low income correlates with lower educational attainment and lack of legal background to be able to force the system to have to engage in as black-and-white crime as it gets in order to let the machine have it its way, and those who would have the money would have an attorney with whom no one would even try a fraction of the short cuts they would with a public pretender'd defendant so the true colors of the system simply never shows. Bob's usually take the "deal" because they know enough to understand the PD will not do much to prove even if they are innocent let alone taking up a fight on the mere "reasonable doubt".

PLUS: Bob filed police report, State Bar report each pending, and not expected to yield results before the conclusion of the competency proceedings.

  • 2
    This really could do with a TLDR bit, to at least give people an idea of what the question is before they dedicate the time to read that wall of text.
    – User65535
    Jun 8 at 6:58
  • 1
    If Counsel or counsel's affiliated employees disclosed privileged information to other parties, there are clear cases for both malpractice against counsel and possible court sanctions. Of course, you can't put the cat back in the bag.
    – Tiger Guy
    Jun 8 at 13:46


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