CBA Record November 2018

General Inquiries into Criminal Conduct What about run of the mill, general inqui- ries into criminal consequences and activ- ity? If a client is uncertain about the legal implications of a proposed course of action and consults an attorney, such “good faith” communications are privileged, even if the proposed action is later held improper. Decker, at 1102. Other Common Exceptions to the Privilege Outside of the crime-fraud and non-lawyer role exceptions, other situations where the privilege does not apply include: • When other people(third parties) are present: People v. Werhollick , 45 Ill.2d 459, (1970); • Ineffective assistance of counsel is claimed: People v. Krankel, 102 Ill.2d 181 (1984); • It is necessary to prevent imminent, substantial threat of bodily harm: IRPC 1.6(c); • The client gives informed consent to disclose the privileged communications: IRPC 1.6(a) Alive and Well The attorney-client privilege is still very much alive, presidential social media com- munications to the contrary. But let’s be clear: Violating the trust between a lawyer and client undermines the entire purpose of the privilege. When the government searches an attorney’s office, the Consti- tution is at stake. The 6th amendment guarantees a right to legal representation. Confidentiality is the essence of represen- tation. When the government intrudes on this protected space, caution is required. The scope of the privilege may not be limitless, but attorney-client privilege isn’t dead. Far from it. It’s just misunderstood on social media. Paul C. Meyers is a private criminal defense attorney currently practicing at Robert Cal- lahan & Associates. Previously he was a public defender at the Kane County Public Defender’s Office.

CBA MEMBER DISCOUNT PROGRAMS

resembling a gun but thought he had one. During trial preparation for direct examina- tion at trial, the client adamantly claims he saw something metallic in the victim’s hand. Does the attorney have a duty to inform the court when the client testifies to this at trial? What should a lawyer ethically tell a client who proposes such embellishment? This was the exact situation addressed in Nix v. Whiteside. In that murder trial, the client consistently claimed he never saw a gun until preparation for direct examina- tion when he claimed to see something metallic in the victim’s hand. The client stated, “[i]f I don’t say I saw a gun, I’m dead.” 475 U.S. 157, 161 (1986). The attorney told him that if he testified to this, the attorney would be obligated during trial to inform the court that the client was committing perjury. Based on this, the client chose not to testify to seeing anything metallic in the victim’s hand. On appeal, he did, however, claim his attorney was inef- fective and violated his right to testify. The United States Supreme Court rejected the defendant’s claims and backed the attorney. Even more, they hailed it as an example in “which the attorney successfully dissuaded the client from committing the crime of perjury” and concluded that, “the right to counsel includes no right to have a lawyer who will cooperate with planned perjury.” Nix at 172. • In some cases, contempt is appropriate if an attorney refuses to disclose communica- tions; Decker, at 1107. In adopting this standard, the Illinois Supreme Court provided cautionary instructions for the crime-fraud exception/in-camera rule. Specifi- cally, they offered three suggestions: • Have a judge who is not the trial judge conduct the in camera inspection; • The Court’s questions during in camera inspection should begin very narrowly i.e. “Did your client ask your advice to commit this [specific illegal] act, knowing it to be unlawful?” Decker, at 1107.

Save on Lexis, client credit card processing, vir-

tual office receptionists, student loan rates, car

rentals, UPS, magazine subscriptions, legal soft-

ware andmore.Visit www.chicagobar.org/save

for more information and links to our discount

providers. These programs have been negoti-

ated to offer you savings and special offers as a

value-added benefit of your CBA membership.

Make themost of your membership investment

and check out these savings!

WANTED: CBA MEMBER EMAIL ADDRESSES

By providing us your email address, you will:

–Receive the CBA e-Bulletin every Thursday containing a list of the following week’s com- mitteemeetings and speakers noting freeMCLE credit, upcoming seminars, networking events and important news about the Association. –Receive timely notices of your committee meetings, topics and speakers. –Cut down on the amount of mail and faxes the CBA sends. To notify us of your email address, call 312/554- 2135 or send an email to info@chicagobar.org including your name, phone, email address and CBA member number. Please note that the CBA does not provide or sell member email addresses to outside entities nor will we bombard youwith unnecessary emails. Thank you!

CBA RECORD 35