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COMMUNICATING WITH CLIENTS AND THIRD PARTIES By ANGELA REA AMY HANNAH.

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Presentation on theme: "COMMUNICATING WITH CLIENTS AND THIRD PARTIES By ANGELA REA AMY HANNAH."— Presentation transcript:

1 COMMUNICATING WITH CLIENTS AND THIRD PARTIES By ANGELA REA AMY HANNAH

2 JAMES BOND During a jail visit, Susie Ethicle talks to James Bond, her client, to discuss the prospects of making bond. James informs Susie that he is unable to make the current cash bond of $25,000, but his family could post a property bond or 10% partially secured bond. She tells him that she thinks it is likely that he could get his bond reduced due to his limited criminal history and ties to the community. Susie files the motion for bond reduction. Before the hearing, her client tells her that he knows that there is a lot of evidence against him, so he does not intend to comply with any conditions of release and will not come back to court. He says that he just needs the bond lowered so he can get to Canada and hideout. What should Susie do? She has several questions for you. Susie knows that the Judge in this court conducts a thorough bond hearing and typically asks a number of questions about flight and compliance with court orders. The judge is likely to ask: “Why should I reduce the bond?” and “What is your client going to do if he is released?”

3 WHAT SHOULD SUSIE DO? A.Remand the bond reduction motion due to her client’s intention to defy court orders and his unwillingness to return to court. B.Susie that she cannot lie to the court and if asked about her client’s chances of coming back to court, she must tell the judge that he intends to flee the jurisdiction. C.Susie should be a zealous advocate for her client. That means argue the bond motion as she would in any other case. When the judge inquires about her client’s plans, she should argue that the client has every reason to return to court and to comply with court orders. D.Susie should argue the bond reduction motion like normal. She should point out his ties to the community and limited criminal history. When asked about whether her client will return to court, she should argue that the client has every reason to return to court. If the judge inquires further about what her client intends to do, she should tell the judge that invades attorney- client privilege.

4 Before the bond hearing, client’s grandmother informs Susie that she is willing to put her house up for her grandson, but is worried that he may not return to court. She wants to know what Susie thinks. The grandmother has caught him in lies before and fears that she may lose her home. What can Susie tell her? A.Since the information is not related to legal matters in the case, and the grandmother could lose her house, Susie could inform her that her grandson does not plan to come back to court. B.Susie should tell her to talk to her grandson about his willingness to come back to court. C.Susie should discourage the grandmother from putting her house up for her client, but make sure that she does not covey what her client said about leaving the country. D.Remind grandmother that she represents James and cannot give her advice. Tell grandmother she will have to make her own decisions about whether to post the property bond.

5 JOE SCHMO Your client, Joe Schmo, has elicited your help in getting medical treatment from the jail for the hepatitis C that he has suffered from for years. You are successful in getting the medical staff to attend to the illness and he is now receiving the medications that he needs. However, his codefendant is also his long term girlfriend and Joe tells you that he never told her that he has the disease. She is also in custody. At a pretrial conference, her attorney petitions the Court for bond relief, mentioning that his client has been ill and feels that she needs to see her own doctor for diagnosis and for treatment. What do you say to her attorney? What may you say to her attorney?

6 ANITA ETHEKS Anita Etheks has a sentencing hearing tomorrow. Her client signed the following plea deal: “Defendant pleads guilty to five years on one count of TBUT over $500, dismiss PFO I. The CW agrees to release the defendant pending sentencing. If he complies with court orders, completes the PSI, shows up to court, and is not charged with any new offenses, the Commonwealth will recommend probation. However, if he fails to comply with these conditions, the Commonwealth will object to probation” The client called and stated that he recently went down to Nashville and got charged with Theft and DUI. He did a night in jail, but is out now and does not have court in Tennessee for a month. He is worried about sentencing. Since this new arrest just happened, it is not likely to not show up on his PSI report. Anita knows the prosecutor in this case very well and has a great working relationship with her. The prosecutor is known for her laziness and is not likely to check Courtnet or NCIC prior to sentencing. Anita is worried that her client is going to prison, but knows there may be an ethical issue over what to say to the prosecutor and the court about his compliance to the plea deal. Anita wants to say nothing about the new charges.

7 WHAT SHOULD ANITA DO? A.Anita should not say anything to the court about the new charges unless asked specifically by the court. Anita does not have to tell the prosecutor if she asks because she has no duty to turn over inculpatory information and it is not her fault if the prosecutor is lazy. Anita has a duty of confidentiality and cannot convey information relayed in the attorney-client relationship. B.Anita must inform the prosecutor and the judge of her client’s new charges. She has a great relationship with the prosecutor; if the prosecutor were to find out that she is hiding this information, it could hurt her future clients. C.Anita should not say anything about her client’s new charges until asked by the prosecutor or the judge. Anita has a duty to not lie to the court or the prosecutor but she also has a duty to not reveal confidential information.

8 ROGER AND LOLA Your client, Roger, is in custody for wanton endangerment in the second degree and assault in the fourth degree. His (ex?) girlfriend, Lola, called 911 and reported that he punched her, causing bruising to her face. Lola also said that he strangled her until she had trouble breathing. A medical exam revealed a bruise to her cheek and redness on her throat. Lola did not appear when subpoenaed for a pretrial conference in district court, although a police officer who spoke with her and saw her injuries was present. You have set the case for jury trial and conducted investigation. Lola did not return calls to her known telephone numbers and your investigator had no luck locating at any addresses associated with her. Through discovery, you receive a recording of jail calls from Roger to Lola. They appear to be on good terms. However, the only talk about what happened is Lola’s statement, “I wish none of that had happened, you know, when you got arrested.” There are a few more uneventful calls after this one; they abruptly stop about a month before trial. Two weeks from trial, you learn that Lola has been served. Later that week, when you are in Court, your client’s mother drops off an affidavit, apparently by Lola, explaining that Roger did not hit or strangle her. It further says that she made the whole thing up because she saw text messages from another woman on Roger’s phone. Finally, it states that the bruises that she had resulted from falling off of a moped earlier that day.

9 When you speak to your client in preparation for trial, he says “Did you get that paper from my Mom? It’s pretty good isn’t it?” Roger has high hopes for success at trial. He absolutely wants you to use the affidavit. At trial, Lola testifies consistently with her report to police. When direct exam is complete, do you: A.Impeach Lola with the affidavit. B.Ask for an ex parte hearing during which you tell the Judge that Roger wants you to present falsified evidence to the Court. C.Cross Lola without the affidavit.

10 ROLAND AND HIS MOTHER Roland has been accused of sexually abusing his ex-girlfriend’s eight- year old daughter over a period of two years, while they all lived together. His girlfriend discovered cell-phone videos of the acts and called police. You have reviewed the videos in the prosecutor’s office. They leave no doubt that Roland and the child are captured in them and no doubt that the conduct is sexual. Your client also gave a recorded confession, during which he wept and said that he felt terrible about what he had done. Roland is twenty-three years old, has never been in any trouble, and is the apple of his mother’s eye. He is excruciatingly embarrassed by the charges against him. Through discovery, you have received copies of jail calls to his mother. In the calls, he tells mom that he has done nothing wrong; he is in jail because his ex wanted him out of the house to make way for her new boyfriend. Roland’s mother calls you. You: A.Tell your secretary to tell her that you cannot speak to her because she is not your client. B.Take the call yourself, but tell her you cannot talk to her. C.Take the call.

11 ROLAND AND HIS MOTHER, AGAIN Roland’s mom calls you again, she wants to make sure that he has told you about the horrible things that Roland’s father did to him when he was a child and about his lengthy history of psychiatric treatment and hospitalizations. You: A.Tell your secretary to tell her that you cannot speak to her because she is not your client. B.Begin by telling her what Roland has told you to see if he left anything out. C.Ask her to give you what information she has. D.Tell her that you would love to hear what she has to say, but you must first get permission from Roland. Roland later decides to plead guilty and accept a 7 year prison sentence. His mother is bereft about the decision. Four months after he is sentenced, she calls you one more time. She is trying to make peace with the situation. She says that she cannot believe that he pled guilty, she knows he never touched that girl. She asks you if he ever told you what happened with the child. What do you say?

12 PROP JOE Susie Ethicle is on lunch break during trial. Her client, Prop Joe Stewart, is charged with trafficking in heroin. Due to his PFO status, he is looking at twenty years in prison. The evidence that was presented is that he owned a house where a large quantity of heroin was sold with his permission. The CW closed its case before the break. Prop Joe has been consistent in his defense throughout Ms. Ethicle's representation. He maintained that even though he owned the house, he knew nothing about the heroin. When they return to the courtroom, Prop Joe leans over to Ms. Ethicle and says “This is not going well, I am going to change the story.” He now wants to testify that he knew that drugs were being sold in the house, but he was threatened by his nephew, Cheese, to keep quiet. This is the first time Ms. Ethicle heard him say this. Additionally, she has no way to present this theory, other than from Prop Joe himself. She has explained her concerns about his story and reminded him that he needs to testify truthfully, but her client says that changing his story is his best chance to beat the case. He also says that since he gave no statement to the police or anyone else, she is the only person that knows his original story and they have attorney-client privilege.

13 MS. ETHICLE WANTS TO KNOW WHAT TO DO? A.She should try to convince Prop Joe to not testify and let her proceed with the earlier theory that she outlined in her opening. If he insists on testifying, then she should direct him normally since she has a duty of confidentiality to him and cannot reveal what he said to anyone. B.She should inform the client that she cannot participate in a fraud upon the court. She should allow the client to testify in a narrative form without informing the court of the specific reasons for the departure from regular examination. C.She must explain to him her duty to inform the court that he intends to offer perjured testimony. Also, as an attorney, she cannot sit in the courtroom and allow a fraud to be presented to the court. Therefore, she must ask for a mistrial and withdraw from the case. Client perjury confronts the lawyer "with what we may call a trilemma-that is the lawyer is required to know everything, to keep it in confidence, and to reveal it to the court." M. Freedman, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM 28 (1975).

14 BONNIE AND CONNIE You represent Bonnie. Another attorney represents Connie. Bonnie and Connie are charged with four counts of r5obbery in the first degree for knocking off liquor stores. After arraignment, Bonnie is accidently released when the Court sends down a release instead of a commitment. She is rearrested three weeks later, during another liquor store robbery. Connie is later made an offer to plead guilty to four counts of facilitation to Robbery in the first degree, for a total sentence of seven years. Connie accepts that offer, enters her guilty plea, waives separate sentencing, and begins looking forward to her meeting with the parole board. You want to send an investigator to ask Connie about the case. Do you? Connie accepted an offer that involved guilty pleas to facilitation and a seven- year sentence, but she has agreed to testify “truthfully” at trial. The Commonwealth will recommend probation if she does so. Her sentencing date is scheduled for the week following Bonnie’s trial. You want to send an investigator to ask Connie about the case. Do you?

15 …BONNIE AND CONNIE Connie accepted the same offer, including the agreement to testify at trial, but she does not want to ask for probation. The plea agreement states that it will be voided if Connie fails to testify truthfully at trial. She waives separate sentencing and begins serving the sentence. The Court makes arrangements to transport her back to testify at Bonnie’s trial. You want to send an investigator to ask Connie about the case. Do you? Connie entered the pleas, agreed to testify against Bonnie, and is scheduled to come back for sentencing after Bonnie’s trial. She then posts bond before Bonnie’s trial and her own sentencing. When the case is up for trial, the Court is already in trial. You know that Connie’s attorney is delayed in another court. Connie needs to go pick her sick child from day-care. She asks you if you have seen her attorney and if she is really going to have to testify today. What do you say?

16 … …BONNIE AND CONNIE This time, Bonnie is arrested while fleeing from the last liquor store robbery. Connie is not and seems to disappear. Bonnie, unfortunately, stays in custody. She tells you that three out of the four robberies were committed by Connie alone. The last time, Connie asked Bonnie (her identical twin sister) to drive her to the liquor store to pick up a bottle of bourbon. Bonnie only realized that it was a robbery when Connie came running out with cash and gun in hand and told her to “Drive! Now!” Then Connie told her the about the other robberies before bailing out of the car and leaving Bonnie to be arrested. Police are still looking for Connie. Two weeks after Bonnie was arrested, you get a phone call. It’s Connie. What do you do? A.Decline to take the call. B.Take the call and tell Connie that police are looking for her and she’d help herself out if she just turned herself in. C.Take the call, tell her that you are Bonnie’s lawyer and cannot talk to her. D.Take the call, tell her that you are Bonnie lawyer and cannot give her advice, but would be glad to hear what she wants to tell you.


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