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If a client confessed to plans, in-going activity or intent to commit a crime, an attorney may disengage.

I would argue imposing a duty on an attorney to disclose their reasons if it requires court approval would be a violation of prohibition against self-incrimination.

But I cannot wrap my head around how is Biden’s Attorney’s turning over the 10 classified documents to the DoJ not a violation of attorney-client confidentiality?

Maybe one can argue that the in-going off-site storage of them is an implied plan(?), but if an attorney doesn’t have a duty to give all doubt to their client to formulate all potentially effective defenses that the prosecution would have to overcome, then who does?

Following this logic, The attorneys should have simply presumed error. Which seems a reasonable presumption since the documents weren’t “found” missing out of their binders or folders like in Trumps case. They don’t seem to fit a consistent narrative of wrong doing since it includes both ally information (UK) and adversary stuff (Iran etc.).

And even if it did, why would he not return it or hand them over all together?

The attorneys (ridiculous to even have to discuss it in this angel) had no probable cause of wrong doing.

They should have simply returned it to those departments that were to keep them safe instead of effectively reporting their client.

Question:

Is there a case law exception carved out of the Fifth Amendment’s prohibition of self-incrimination for criminal conduct related to documents classified as confidential or affecting national security?

If so, how is political persecution can be safe guarded on false treason and similar charges? (You just need to have your own attorneys “turnover” some documents in your behalf, and no one’s ever going to believe you — not assuming that is the case here, rather that Biden recklessly handled those documents)

UPDATE: The initial reports were wrong. POTUS’ attorneys did NOT give the documents to the DoJ, but appropriately gave them to the National Archived; Biden made a statement to this effect which, unless in the hypothetical, made the question moot. The attorneys hence made no implied statement to implicate POTUS wrong doing by choosing to return the docs to DoJ as though a form of reporting crime, but returned the documents to the Archives implicating no wrong doing on their client’s part.

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    Is there any reason to think that the action wasn't taken with Biden's permission?
    – ohwilleke
    Commented Jan 11, 2023 at 0:57
  • @ohwilleke I mean, they could have returned it to “The U.S. National Archives and Records Administration” (looked it up what U.S. agency it is), and make no statement on his behalf or give the explanation he intended. In this case: (a) dementia, and/or (b) someone else’s wrong doing planting those docs there. (POTUS states he has no clue what’s inside the docs, I’d think he either forgot, may have been less than reckless and shuffled them in with some other documents, or possibly someone placed them in his docs so he takes them home) Maybe some other banal reason. Why report him to DOJ? Commented Jan 11, 2023 at 4:21

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Documents are not protected under the 5th Amendment, so a person can be compelled to produce documents that may incriminate them. The person cannot be forced to testify against themselves, however – they can invoke their right to not testify against themselves. The attorney-client privilege canon has some exceptions, for example

(4) to secure legal advice about the lawyer's compliance with these Rules

or

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services

(bearing in mind that POTUS is required by law to turn all documents over to the national Archives, so turning the records over is "compliance with the law" and a think that an attorney would do for their client, though this event is quite belated).

No subpoena was issued and no testimony was given, so the Fifth Amendment is irrelevant.

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  • The way I imagined this a violation (may be didn’t express it well enough) lies specifically in the rules of attorney conduct. Through the courts (which are under the powers of the United States, and are the gov’t) attorneys are compelled to act in certain ways and atty’s are “officers of the court” so officers of the state and the United States who did not compel to turn the documents over, but made the implicit statement of potential wrong doing by the choice of authority they handed the docs over. They asked: Is this wrong doing? Which implicitly states you believe it’s possible it is. Commented Jan 11, 2023 at 4:28
  • Updated the question based on the most recent developments of the matter. Commented Jan 11, 2023 at 4:47

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