COMMUNICATING WITH CLIENTS AND THIRD
PARTIES
By
ANGELA REA
AMY HANNAH
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?”
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 attorneyclient privilege.
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.
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?
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.
WHAT SHOULD ANITA DO?
A.
B.
C.
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.
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.
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.
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.
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.
ROLAND AND HIS MOTHER
Roland has been accused of sexually abusing his ex-girlfriend’s eightyear 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.
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?
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.
MS. ETHICLE WANTS TO KNOW WHAT
TO DO?
A.
B.
C.
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.
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.
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).
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 sevenyear 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?
…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?
… …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.
A.
B.
C.
D.
What do you do?
Decline to take the call.
Take the call and tell Connie that police are looking for her and she’d help
herself out if she just turned herself in.
Take the call, tell her that you are Bonnie’s lawyer and cannot talk to her.
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.